AYES-TILDEN  CONTEST 

FORE  THE  ELECTORAL  COMMISSION 


THE  FLORIDA  CASE 


ERT  WILLIAM  R.  EWING. 


History  and  Law 
of 

The  Hayes-Tilden  Contest 

Before  The  Electoral  Commission 

The  Florida  Case 
1876-77 


By  ELBERT  WILLIAM  R.  EWING,  LL.  B. 
Attorney  and  Counsellor  ofthe  Supreme  Court  of  the  United  States 

Author  of 

"Legal  and  Historical  Status  ofthe  Dred  Scott  Decision" 
and  "Northern  Rebellion  and  Southern  Secession" 


Washington,    D.   C. 
Cobden    Publishing  Company 


Copyright,  1910. 

by 
Cobden  Publishing  Company. 


All  Rights  Reserved. 


The  Eddy  Press  Corporation 
Winchester,  Va. 


Contents. 

CHAPTER  I. 

THE  CANDIDATES — THE  ELECTION — SUBSEQUENT 
CONDITIONS. 

CHAPTER  II. 
THE  ELECTORAL  COMMISSION. 

CHAPTER  III. 
THE  CERTIFICATES — THE  IMPEACHMENTS. 

CHAPTER  IV. 
THE  BATTLE  BETWEEN  COUNSEL. 

CHAPTER  V. 
THE  FINAL  MAJORITY-DECISION. 


CHAPTER  VI. 
THE  EXECUTIVE  AUTHORITY  OF  FLORIDA. 

CHAPTER  VII. 

THE  HAYES  USURPERS. 

CHAPTER  VIII. 
THE  FLORIDA  ELECTION   LAW. 

CHAPTER  IX. 
THE  RETURNS  AND  THE  CANVASS. 

CHAPTER  X. 
AFTER  THE  BATTLE. 


982239 


Preface. 

To  follow  the  fortunes,  studying  the  manoeuvres, 
of  legal  battle  between  the  greatest  leaders  of  the 
American  bar,  is  of  itself  an  exercise  of  much  delight. 
When  the  occasion  and  the  opportunity  for  the  struggle 
furnish  a  study  of  pre-eminent  historical  value,  reveal 
ing  questions  eminently  practical  to  the  citizen  who 
would  deal  intelligently  with  affairs  of  government,  as 
well  as  to  the  statesman  and  to  the  lawyer,  the  importance 
of  the  subject  cannot  be  overestimated.  The  Hayes- 
Tilden  controversy  over  the  Presidency  of  the  United 
States  for  the  term  beginning  March  4,  1877,  gave 
rise  to  a  tribunal  known  as  the  Electoral  Commission ; 
and  when  this  court  came  to  pass  upon  the  dis 
puted  questions  affecting  the  succession,  the  fierce  legal 
battle  which  ensued  and  the  treatment  of  the  questions 
before  it  by  the  Commission,  furnish  an  unique  chapter 
thus  replete  with  interest,  practical  value  and  human 
nature. 

Advocating  the  cause  of  Tilden  towered  Charles 
O'Conor,  in  his  day  without  a  peer  at  the  bar  of  this 
country — perhaps  without  an  equal  abroad.  Associated 
with  him  were  Jeremiah  S.  Black,  once  Attorney- 
General  of  the  United  States,  learned,  skilful  and 
widely  known ;  Lyman  Trumbull,  long  a  Republican 
Senator  and  an  intimate  personal  friend  of  Lincoln; 
Montgomery  Blair,  an  able  lawyer  and  who  had  been 
of  counsel  in  the  famous  Dred  Scott  Case;  the  astute 
Ashbel  Green;  the  distinguished  Richard  T.  Merrick; 
ex-Judge  John  A.  Campbell,  one  of  the  justices  who 
concurred  with  Chief  Justice  Taney  in  the  Dred  Scott 
decision,  and  who  wrote  several  important  opinions 

4 


Preface  5 

while  on  the  Supreme  Bench ;  George  Hoadley,  and 
William  C.  Whitney. 

For  Hayes  in  the  place  of  first  command  appeared 
the  wrinkled,  thin  face,  belying  the  powerful  brain,  of 
William  M.  Evarts,  who  had  been  of  counsel  for 
Andrew  Johnson  in  his  historic  impeachment  trial, 
still  more  famous  since  his  able  connection  with  the 
Alabama  Case,  and  fresh  from  masterful  achievements 
in  the  Beecher  trial.  Aligned  with  him  were  Stanley 
Matthews,  shortly  to  be  elevated  to  the  Supreme 
Bench  of  the  United  States ;  Edward  M.  Stoughton, 
shrewd  and  masterful ;  and  Samuel  Shellabarger,  Mr. 
Hayes'  personal  counsel — all  of  both  sides  men  of 
learning,  consummate  skill  and  wide  experience,  Whit 
ney  then  the  least  known  of  the  number. 

The  Electoral  Commission  held  its  public  sessions 
in  the  present  court  room  of  the  United  States  Supreme 
Court.  Formerly  the  old  Senate  chamber,  this  his 
torical  old  room  in  the  Capitol  in  Washington,  the 
scene  of  many  brilliant  and  profound  debates,  some 
notable  hearings  and  the  pilot  house  from  which  this 
government  has  been  guided  in  a  degree  unequalled 
from  any  other  source,  has  been  the  scene  of  no  case 
more  interesting  and  none  of  greater  importance  to 
popular  government  than  was  that  heard  by  the  fifteen 
distinguished  men  composing  this  Commission.  Created, 
January  29,  1877,  under  peculiar  conditions  by  an  act 
of  Congress  supported  by  Democrats  and  Republicans, 
carried  in  the  face  of  an  obstinate  fight  led  by  giants 
of  both  parties,  the  Commission  by  vote  of  the  eight 
Republicans  to  the  seven  D'emocrats,  before  the  fourth 
of  the  following  March,  rendered  a  decision  involving 


The  Hayes-Tilden  Contest 


the  most  vital  questions  that  can  arise  in  the  election 
of  President  of  the  United  States. 

Americans  entertain  different  views  of  the  value  of 
that  famous  decision  and  of  the  nature  of  the  title 
resting  thereon.  Though  Hayes'  "moral  title  to  the 
Presidency  was  always  questioned,  his  legal  title  was 
perfect,"  says  Doctor  James  Ford  Rhodes  in  his  recent 
study  of  the  great  controversy.  Doctor  Rhodes  is  an 
eminent  and  most  widely-followed  representative  of  a 
large  class.  A  similar  and  representative  view  is 
advanced  by  a  correspondent  in  The  Nation  on  March  3, 
1881,  when  he  says  that  the  action  of  the  Commission 
"could  not  do  more  than  make  it  decent  for"  Mr. 
Hayes  to  accept  the  Presidency. 

Many  others  believe  that  the  defect  in  the  Hayes 
title  was  both  moral  and  legal.  These  believe  that  the 
decision  of  the  majority  of  the  Commission  is  a  blot 
upon  American  history — indelible — to  be  studied  that 
its  repetition  may  be  avoided.  The  Commission,  by 
the  express  terms  of  the  law  creating  it  and  by  its  own 
admission,  was  not  a  tribunal  of  last  resort,  and  could 
render  no  authoritative  announcement  of  the  law;  it 
was  to  proceed  to  consider  the  questions  submitted 
to  it  "with  the  same  powers,  if  any,  now  possessed  for 
that  purpose  by  the  two  Houses  acting  separately  or 
together,  and,  by  a  majority  of  votes,  decide  whether 
any  and  what  votes  from  such  State  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States, 
and  how  many  and  what  persons  are  duly  appointed 
electors  in  such  State,  and  may  therein  take  into  view 
such  petitions,  depositions,  and  other  papers,  if  any, 
as  shall,  by  the  Constitution  and  now  existing  law,  be 
competent  and  pertinent  in  such  consideration."  With- 


Preface  7 

out  power  or  any  right  to  give  an  authoritative  con 
struction  either  of  the  law  or  of  the  Constitution,  it 
could  only  measure  the  facts  before  it  by  the  settled 
law;  the  existing  law,  the  law  as  it  was  at  the  date  of 
the  passage  of  the  bill,  constitutional,  statutory,  the  old 
common  law  preserved  to  the  States,  as  admittedly  under 
stood  or  announced  by  courts  of  competent  jurisdiction 
being  of  last  resort.  So  this  second  class  holds  that  these 
gave  the  Commission  well-defined  vires  \  and  that  it 
may  be  indisputably  established  that  the  decision  of  the 
Commission  passed  beyond  these  limits,  and  that  its 
pronunciamentoes  became  as  illegal  as  are  those  of 
any  person  or  any  tribunal  doing  acts  ultra  vires. 

There  is,  too,  a  small  third  class,  steadily  growing 
less  as  the  light  of  research  follows  in  the  wake  of 
the  departing  party  passion  and  prejudice,  who  believe 
that  Mr.  Hayes  enjoyed  a  title  without  either  moral 
or  legal  blemish. 

My  purpose  in  writing  has  been  to  aid  to  a  clearer 
view  of  the  historical  facts  and  to  assist  to  the  most 
intelligent  grasp  of  the  law,  that  the  powers  of  the 
Commission  may  be  understood,  enabling  the  general 
student  to  appreciate  the  merits  of  the  respective  views. 
This  monograph  aims  to  gather  all  the  material  facts 
bearing  upon  the  questions  before  the  Commission,  so 
that  with  a  study  of  the  law  of  the  case,  the  student 
may  form  an  intelligent  opinion,  enjoying  the  play  of 
ability  of  the  great  lawyers,  and  get  a  clearer  view  of 
the  practical  questions,  both  of  law  and  of  government. 

The  facts  have  been  carefully  and  laboriously  gathered 
from  the  thousands  of  pages  of  government  publications 
covering  the  story  of  the  great  controversy.  No 
original  source  has  been  left  unexplored.  In  stating 


8  The  Hayes-Tilden  Contest 

the  law  I  have  endeavored  to  give  a  correct  annuncia 
tion  of  the  law.  I  have  studiously  avoided  writing  as  a 
lawyer  would  in  preparing  his  brief ;  I  have  meant 
rather  to  be  judicial,  that  the  settled  and  undisputed 
rules  of  law  might  at  all  times  be  presented. 

The  legal  questions  are  much  the  same  in  each  case 
submitted  to  the  Commission.  These  questions  in  any 
one  case  comprehended,  those  which  arose  in  the  others 
are  understood.  I  have  selected  the  Florida  Case  for 
testing  the  legal  title  of  President  Hayes,  and  for  an 
examination  of  the  principles  announced  as  the  basis 
of  the  decision  by  the  Commission,  because  the  Repub 
lican  contribution  of  Florida  to  Hayes'  vote,  making 
possible  his  success  without  actual  resort  to  force, 
presents,  of  all  the  ugly  record  of  the  disputed  South 
ern  States,  less  moral  depravity,  thus  leaving  the  mind 
freer  to  study  upon  their  merits  the  questions  of  law 
and  of  government. 


I. 

The  Candidates— The  Election- 
Subsequent  Condition^ 

FIFTEEN  most  strenuous  years'  are  thos-e  .frqjn 
Appomattox  to  1880.  No  other  span  of  time 
of  anything  like  similar  length  since  the 
first  firm  footing  of  the  American  people 
on  the  banks  of  the  famous  old  James,  furnishes  a 
more  thrilling  chapter.  In  no  other  period  of  Ameri 
can  history,  whatever  its  length,  do  types  of  our  man 
hood  appear  in  stronger  contrasts  or  principles  of  gov 
ernment  stand  in  bolder  relief.  The  most  malicious 
vindictiveness,  volcanic  in  power  and  of  seismic  destruc- 
tiveness,  dangerously  menaced  constitutional  govern 
ment;  statesmanship  waned  under  the  rule  of  the 
demagogue;  morality  in  high  places  scorched  its  ermine 
in  the  fires  of  unholy  ambition;  citizenship  was  be 
smirched;  and  a  great  people  writhed  beneath  humiliat 
ing  conditions  imposed  by  irresistible  power, — its 
bayonets  fixed  and  brandishing  the  sword. 

Yet  hope  in  ultimate  justice  kept  the  right  strong 
for  the  battle ;  at  last  democratic  government  triumphed 
and  usurpations  became  history.  All  the  time  the  on 
ward  sweep  of  the  private  life  of  the  entire  people  was 
little  retarded;  literature  flourished,  art  made  possible 
a  sweeter  life  and  added  to  the  greatness  of  a  remark 
ably  wonderful  people.  In  that  section  of  the  people 
most  affected  by  the  evil,  material  prosperity,  wide 
spread  and  generous,  rewarded  the  brave  efforts  of 
;ts  invincibles  and  added  strength  for  the  civil  battle, 


io  The  Hayes-Tilden  Contest 

until  out  of  the  ruin  and  out  of  the  blackness  of  the 
antecedent  years  this  vital  section  gradually  lifted  itself 
into  conditions  of  prosperity  and  of  domestic  peace 
^uch  as  it  Jnd,  not;  known  for  more  than  one  hundred 
,yearsv  >  £•£/{•  £-,jE 

Jn  th%^  t  thrilling  t  story  of  this  wonderful  era,  two 
:ey<3«>s  ,  hold  tbe  student  and  teach  him  more  than  all 
the  others.  Full  of  significance,  rich  in  varied  in 
terests,  their  story  is  well  worth  its  time.  These  are 
the  Presidential  election  of  1876,  and  the  electoral 
count  of  1877. 

To  understand  the  great  opportunity  for  the  con 
fusion  and  bitter  conflicts  which  followed  this  election, 
giving  rise  to  the  count,  we  must  bear  in  mind  that 
then,  as  now,  in  America  the  voters  do  not  directly 
choose  a  President  and  a  Vice-President.  The  States, 
by  organic  constitutional  law,  were  left  to  act  as  poli 
tical  individuals,  as  sovereign  and  for  many  purposes 
independent  units.  The  predominant  conception  of  our 
forefathers  was  that  the  States  should  choose  a  com 
mon  ruler,  and  not  that  a  great  National  Unit  should 
choose  its  President.  However  much  ideas  with  ref 
erence  to  this  act  may  have  changed,  the  method  of 
its  performance  to  this  day  remains.  Not  the  majority 
of  the  popular  vote,  but  State-majority  determines  who 
shall  be  the  President  and  the  Vice-President  of  the 
United  States.  Not  even  the  qualified  suffragists  con 
stitute  the  basis  for  the  power  that  any  State  is  to 
exercise  in  choosing  our  President.  When  the  States 
adopted  the  Federal  Constitution,  it  was  agreed  in 
section  three  of  article  one  that  the  number  of  repre 
sentatives  to  which  each  State  should  be  entitled  in 
"a  Congress  of  the  United  States"  should  ''be  deter- 


The  Election  n 

mined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years, 
and  excluding  Indians  not  taxed,  three-fifths  of  all  other 
persons."  "Three-fifths  of  all  other  persons"  had 
especial  reference  to  the  negro  slaves  which  at  that 
time  existed  by  local  laws  in  all  of  the  States.  The 
number  of  representatives  could  not  be  in  excess  of 
one  for  every  thirty  thousand,  but  whatever  its  popu 
lation  each  State  was  to  have  at  least  one.  Art.  II. 
created  the  executive  power  and  vested  it  in  a  President. 
Paragraphs  two  and  three  provide  for  the  manner  in 
which  the  executive  shall  be  chosen.  "Each  State  shall 
appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  Electors,  equal  to  the  whole  num 
ber  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress."  "The  Electors  shall 
meet  in  their  respective  States,  and  vote  by  ballot  for 
two  persons."  "And  they  shall  make  a  list  of  all  the 
persons  voted  for,  and  of  the  number  of  votes  for  each ; 
which  list  they  shall  sign,  certify  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States, 
directed  to  the  president  of  the  Senate.  The  president 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
the  House  of  Representatives,  open  all  the  certificates, 
and  the  votes  shall  then  be  counted.  The  person  hav 
ing  the  greatest  number  of  votes  shall  be  the  President, 
if  such  a  number  be  a  majority  of  the  whole  number  of 
electors  appointed."  The  person  having  the  next  high 
est  number  was  to  be  the  Vice-President.  In  case 
two  or  more  persons  had  equal  numbers,  or  lacked  the 
required  majority,  the  choice  of  a  President  fell  to 
the  House  of  Representatives;  and  similarly  if  no 
Vice-President  should  be  chosen,  that  election  fell  to 


12  The  Hayes-Tilden  Contest 

the  Senate.  Congress  was  given  power  to  determine  the 
time  of  "choosing  the  electors,  and  the  day  on  which 
they  shall  give  their  votes." 

Article  XII.  of  the  amendments  changed  the  procedure 
to  the  extent  only  that  the  electors  are  now  required 
to  vote  by  ballot  for  a  President  and  a  Vice-President ; 
the  ballots  are  to  be  distinct  and  distinct  lists  are  to  be 
made,  signed,  certified,  and  as  previously  to  be  sent 
sealed  to  the  president  of  the  Senate,  who  shall,  "in 
the  presence  of  the  Senate  and  House  of  Representa 
tives,  open  all  the  certificates  and  the  votes  shall  then  be 
counted."  Article  XIV.  of  the  amendments  has  changed 
the  basis  of  representation  in  Congress,  and  hence  the 
number  of  electors  to  which  each  State  shall  be  en 
titled,  so  that  at  this  time  "representatives  .shall  be 
apportioned  among  the  several  States,  according  to  their 
respective  numbers,  counting  the  whole  number  of  per 
sons  in  each  State,  excluding  the  Indians  not  taxed." 

Again,  it  is  both  interesting  and  important  to  remem 
ber  that  when  the  electors  of  any  State  have  con 
vened  for  the  purpose  of  voting,  each  man  exercises 
his  own  independent  right  of  choice.  He  may  cast  his 
vote  for  any  one  who  meets  his  approval.  Legally  he 
is  not  obliged  to  vote  for  the  ticket  which  is  the  choice 
of  the  majority  that  elected  him.  He  may  be  nominated 
and  elected  as  a  Republican  elector,  and  yet  cast  his  vote 
for  a  Democratic  candidate.  But  electors  regard  them 
selves  as  under  moral  obligations  to  support  the  ticket 
with  which  they  are  known  to  be  in  accord  at  the  time 
of  the  general  election.  So  it  is  that  the  choice  of 
electors  at  the  ballot  confers  upon  them  the  power  to 
choose  the  President  and  the  Vice-President,  with 
simply  a  request  to  exercise  that  power  for  the  purpose 


The  Election  13 

of  selecting  certain  men  now  previously  named  by 
party  leaders  in  national  conventions.  Electors  have 
such  a  high  regard  for  that  request  on  the  part  of  the 
popular  voters,  that  as  soon  as  it  is  known  who  have 
been  chosen  electors  in  any  State,  it  is  known  with 
moral  certainty  for  whom  the  electoral  vote  of  that 
State  will  be  cast  when  the  electoral  college,  as  the 
meeting  of  the  electoral  body  is  sometimes  called,  shall 
convene  and  shall  vote. 

The  State  may  appoint  electors  in  such  manner  as 
she  pleases.  For  many  years  the  electors  were  chosen 
by  the  legislature  in  several  States;  in  some  the  choice 
is  by  districts  at  popular  elections ;  and  generally  now 
the  choice  is  by  popular  election  by  the  voters  of  the 
whole  State.  Whatever  manner  any  State  prescribes,  is 
yet  entirely  legal  and  can  not  be  questioned  by  the  Fed 
eral  Government  or  any  branch  thereof. 

Where  the  choice  is  by  popular  suffrage,  as  was  true 
in  Florida  at  the  November  election,  1876,  the  local 
procedure  is  as  follows : 

First,  the  people  vote  at  various  places  in  the  coun 
ties.  At  sunset  on  election  day  the  precinct  polls,  as 
these  voting  places  are  called,  are  closed.  The  pre 
cinct  officers  count  the  votes,  certify  the  result  and 
forward  that  certificate  together  with  the  ballots  of 
each  precinct  to  the  county  seat.  When  all  the  precincts 
of  the  county  are  in,  a  county  canvassing  board  certi 
fies  the  total  result  shown  by  all  the  precinct  reports. 
This  certificate  is  then  sent  to  the  seat  of  State  govern 
ment,  and  the  ballots  themselves  are  filed  at  the  seat  of 
the  county.  At  the  seat  of  State  government  a  State 
canvassing  board  sums  up  all  the  county  reports,  de 
clares  the  result  as  shown  by  the  returns  before  it 


14  The  Hayes-Tilden  Contest 

and  issues  certificates  accordingly.  The  details  thus 
far  are  all  left  to  State  laws, — such  as,  who  and  how 
many  shall  constitute  the  precinct  election  officers;  who 
shall  be  permitted  to  vote  and  under  what  conditions ; 
who  shall  constitute  the  county  canvassing  board,  the 
State  canvassing  board,  and  the  manner  in  which  each 
shall  perform  its  duties.  The  Federal  law  does  no  more 
than  prescribe  the  day  upon  which  the  general  election 
shall  be  held,  the  day  upon  which  those  who  have  been 
chosen  electors  for  each  respective  State  shall  vote, 
the  manner  in  which  they  shall  certify  the  result  of 
their  voting,  and  that  three  copies  of  their  certificates 
shall  be  made,  two  of  which  are  sent  to  the  seat  of 
the  Federal  government,  one  by  post,  the  other  by 
private  messenger,  addressed  to  the  president  of  the 
Senate,  and  that  the  other  be  sent  to  the  Federal  judge 
of  the  circuit  within  which  they  meet. 

In  selecting  a  successor  to  President  Grant  the  con 
test  between  the  two  great  parties  at  the  November 
election  of  1876,  became  most  bitter.  The  Republican 
party,  an  organization  whose  forces  had  been  drawn 
from  those  commercially  and  socially  opposed  to  the 
emigration  of  the  negro,  bond,  or  free,  from  the  South, 
posing  as  anti-slavery  but  who  were  really  anti-negro, 
went  to  the  fight  with  a  brilliant  war  record,  and  under 
the  prestige  of  official  power.  At  its  national  convention 
on  June  16,  1876,  it  placed  its  standard  in  the  hands 
of  Rutherford  Birchard  Hayes  of  Ohio,  born  in  1822, 
for  President;  and  W.  A.  Wheeler  of  New  York,  for 
Vice-President.  Hayes,  an  ex-Union  soldier  who  had 
reached  the  rank  of  brevet  major-general,  a  man  of 
considerable  inherited  wealth,  although  little  known 
in  national  life,  had  given  evidence  of  popularity  in  his 


The  Election  15 

own  State.  He  was  sent  to  Congress  in  1864,  elected 
governor  in  1867,  and  in  1875  defeated  William  Allen 
who  had  previously  been  •elected  governor  by  the 
Democrats.  Personally  a  man  of  little  ability,  temporiz 
ing  and  unaggressive,  he  won  friends  by  adulation  and 
gifts.  His  administration  proved  to  be  characteristic 
of  the  man — "a  bread  poultice,"  to  quote  Beecher's 
description.  However,  a  less  widely  accepted  view  of 
the  man  is  that  expressed  by  E.  Benj.  Andrews,  who 
says  Hayes  "had  a  resolute  will,  irreproachable  in 
tegrity,  and  a  comprehensive  and  remarkably  healthy 
view  of  public  affairs."  * 

But  the  most  significant  fact  to  be  kept  in  mind  in 
studying  the  conditions  of  this  period,  is  that  the 
National  Republican  party  had  unchained  the  lion  in 
its  own  camp.  Success  and  power  had  been  too  in 
toxicating  for  those  in  whose  hands  had  been  intrusted 
the  nation's  welfare  and  honor.  National  credit  had 
been  greatly  injured  abroad,  Federal  securities  being 
below  those  of  many  European  States ;  paper  currency 
was  far  below  par  and  wholly  unredeemable.  Political 
scandals  and  frauds  in  official  circles  "by  almost  clock- 
like  regularity"  had  come  to  light  as  the  period  of  the 
election  of  1876  approached.  Dr.  Peck  describes  Grant's 
second  term  as  "a  Phyric  victory"  and  truthfully  says 
it  "was  tainted  by  public  scandal  of  every  description."2 
Even  staunch  Republicans  began  to  stand  aghast.  The 
truly  sober  and  patriotic  of  all  parties  frankly  admitted 
that  the  government  had  fallen  into  the  hands  of  those 
who  had  in  their  midst  a  dangerous  number  of  most 

1The  U.   S.  in  Our  Own  Times,   223. 

2  Harry   Thurston    Peck,   Twenty    Years    of   the    Republic,    14. 


16  The  Hayes-Tilden  Contest 

disreputable  thieves.  The  country  generally  ascribed 
Hayes'  nomination  to  J.  Donald  Cameron,  who  brought 
the  Pennsylvania  delegation  in  the  convention  to  his 
support  at  a  critical  and  opportune  time.  Without 
confidence  in  Cameron  and  his  cohorts,  many  Repub 
licans  feared  their  evil  influence  upon  Hayes.  By 
funds  raised  from  levies  upon  officeholders,  Chandler, 
chairman  of  the  National  party  organization,  lavishly 
supported  the  ticket;  and  rascals  of  the  party  generally 
who  had  escaped  criminal  prosecution  during  Grant's 
stained  administration,  so  warmly  supported  Hayes  that 
many  of  the  party's  best  men  feared  his  election  would 
mean  to  the  defaulters  a  new  lease  of  power  and  a 
repetition  of  its  prostitution. 

Hayes'  letter  of  acceptance,  however,  revealing  "a 
man  clear  in  his  purposes  and  courageous  in  his 
avowal  of  them,"  as  a  contemporary  of  his  administra 
tion  expressed  the  widely  accepted  view  of  it,  became 
a  factor  of  considerable  support,3  doubtless  contributing 
no  little  in  overcoming  the  many  impediments  entailed 
upon  the  party  by  Grant  and  those  who  had  been  placed 
in  positions  of  trust.  However,  Hayes  stood  upon  a 
platform,  the  weakness  of  which  his  letter  could  not 
hide,  especially  in  its  attitude  regarding  the  redemption 
of  currency  in  coin  of  the  United  States.  Too,  the 
menaces  to  the  party  that  had  developed  in  the  State 
election  of  1874  projected  an  ugly  shadow  across  once 
formidable  party  strongholds.  In  that  year  elections 
were  held  in  twenty-five  States,  and  of  these  "twenty- 
three  had  gone  Democratic ;  even  such  Republican  States 
as  Wisconsin,  Ohio,  Pennsylvania,  and  Massachusetts 
had  arrayed  themselves  in  the  Democratic  column ;  and 

3  Atlantic  Monthly,  XLIV.,  191. 


The  Election  17 

only  a  comparative  handful  of  Republicans  had  been 
returned  to  the  House."4  Altogether,  as  Professor 
Haworth,  himself  a  Republican,  of  Columbia  University, 
says:  "That  the  government  was  in  a  deplorable  con 
dition  no  dispassionate  student  of  history  shall  venture 
to  deny.  *  *  *  The  Republican  party,  rendered  reck 
less  by  the  possession  of  too  much  power,  had  been 
weighed  in  the  balance  and  found  wanting." 

The  Democratic  party  marched  to  the  battle  under 
the  leadership  of  Samuel  Jones  Tilden  of  New  York, 
born  in  1814,  and  Thomas  A.  Hendricks  of  Indiana. 
James  G.  Elaine,  who  was  not  in  sympathy  with  Mr. 
Tilden's  party,  says:  "Mr.  Tilden  was  in  some  respects 
the  most  striking  figure  in  the  Democratic  party  since 
Andrew  Jackson."  In  years  comparatively  an  old  man 
when  nominated,  yet  Tilden  was  strong  mentally,  and 
more  so  physically  than  in  his  younger  days,  for  his 
boyhood  was  so  frail  that  it  is  said  he  never  indulged  in 
sport  of  any  kind.  Masterful  and  aggressive,  he  had 
reached  out  and  had  seized  the  Democratic  standard. 
In  1874  he  led  a  valiant  fight  against  the  famous  "Tweed 
Ring,"  and  was  elected  governor  of  New  York.  He 
showed  both  leadership  and  power  in  accomplishing 
the  overthrow  of  the  thieving  Tweed  combination. 
Elaine  gives  us  a  picture  of  this  unique  figure  that  is 
well  worth  preserving:  "Adroit,  ingenuous  and  wary, 
skillful  to  plan  and  strong  to  execute,  cautious  in 
judgment  and  vigorous  in  action,  taciturn  and  mysterious 
as  a  rule  yet  singularly  open  and  frank  on  occasions, 
resting  on  the  old  traditions  yet  leading  in  new  paths, 
surprising  in  the  force  of  his  blows  yet  leaving  a  sense 

4  Paul  Leland  Haworth,  The  Hayes-Tilden  Disputed  Elec 
tion,  3. 


i8  The  Hayes-Tilden  Contest 

of  his  reserve,  Mr.  Tilden  unquestionably  ranks  among 
the  greatest  masters  of  political  management  that  our 
day  has  seen."  ° 

Personally  his  cold,  calculating,  scheming  nature  ren 
dered  Tilden  unlovable ;  he  was  a  man  above  his  fellows 
by  "sheer  intellect  unrelieved  by  any  of  those  human 
qualities  which  win  men's  love  as  well  as  respect,"  is 
Doctor  Peck's  picture  of  this  really  wonderful  man.8 
A  man  of  unimpeachable  integrity,  be  seems  to  have 
worshipped  only  power,  using  all  things  honest  to  that 
end.  Unlovable  he  loved  no  one,  for  in  all  his  life,  we 
are  told,  "he  never  loved  a  woman."  Great,  but  truly 
miserable ! 

When  the  Democratic  nomination  was  first  announced, 
here  and  there  over  the  country  were  heard  slight 
murmurs  of  discontent  in  the  party  ranks.  However, 
shortly  the  gaps  closed  and  the  National  Democracy 
presented  a  solid  front.  Added  to  this  formidable  force 
were  many  of  the  discontented  Republicans,  of  whom 
were  such  men  as  Charles  Francis  Adams,  Parke  God 
win,  and  Professor  Sumner, — men  who  had  grown 
weary  of  the  sins  of  Republican  misrule.  Too,  some 
of  the  ablest  independent  journals  of  that  day,  such 
as  The  Nation,  lent  strength  to  the  Democratic  ticket.7 

The  approaching  panic  and  industrial  troubles  cast 
their  shadow  before,  bringing  to  the  Democratic  cause 
another  no  inconsiderable  element  of  strength.  Stand 
ing  upon  a  strong  platform,  said  to  have  been  written 

8  2    Elaine,   Twenty   Years   in   Congress,    263. 

6  Peck,  Twenty  Years  of  the  Republic,  115. 

7  The    Nation,    XXIII.    4;    North    American    Review,    October, 
1876;    Atlantic    Monthly,    XLIV.,    190;    Haworth,    Hayes-Tilden 
Election,   37. 


The  Election  19 

by  the  able  Manton  Marble  in  his  best  literary  style,  with 
a  strong  and  worthy  leader,  buoyed  by  the  successes  of 
1874,  fighting  for  a  righteous  cause,  the  National  Demo 
cratic  party  had  the  brighest  prospects  of  once  more 
entrenching  itself  in  the  seat  of  Federal  executive 
power.  The  Republicans  opposed  no  worthy  barrier; 
millions  of  money  and  the  cries  of  myriads  of  en 
dangered  Federal  office-holders,  swelling  the  note  of 
the  demagogue  as  he  shouted  through  the  press  and 
from  the  hustings  that  "not  every  Democrat  was  a 
Rebel,  but  every  Rebel  was  a  Democrat,"8  formed  the 
backbone  of  the  opposition. 

As  a  mere  matter  of  history  the  student  should 
remember  that  the  prohibition  and  the  American  Nation 
parties  also  had  tickets  in  the  field.  Neither  of  these, 
however,  had  any  serious  influence  upon  the  fight 
between  the  other  two  parties. 

At  sunset  of  November  7,  1876,  the  roar  of  the  battle 
lulled  and  shifted,  indicating  not  a  cessation  of  the 
struggle  but  a  change  of  the  forces  upon  the  scene. 
During  the  night  the  smoke  of  battle  slowly  lifted 
from  many  a  questionable  field  of  the  struggle,  and 
"on  the  morning  after  the  election,  newspapers  of  all 
parties  announced  the  election  of  Tilden  for  presi 
dent."  9  Led  by  Chandler,  chairman  of  the  National 
Republican  committee,  the  Republicans  quickly  denied 
the  accuracy  of  the  report,  challenging  the  returns 
from  Florida,  Louisiana,  and  South  Carolina.  From  that 
moment  for  many  weeks  the  country  trembled  upon 
the  verge  of  financial  ruin  and  national  disaster. 

"Harper's  Weekly,   1C.,    170. 

•A.  K.  McClure,  Our  Presidents,  263;  Haworth,  The  Hayes- 
Tilden  Disputed  Election,  46. 


20  The  Hayes-Tilden  Contest 

When  the  popular  vote  was  counted  it  was  seen 
that,  of  the  whole  people  voting  in  all  the  States, 
Tilden  had  a  vr\a  jority  of  at  least  252,224.10  At 
this  time  there  were  thirty-eight  States,  and  their 
combined  electoral  votes  were  369.  Therefore  185 
electoral  votes  were  necessary  to  a  choice.  The  Demo 
cratic  ticket  had  carried  New  York,  New  Jersey,  In 
diana,  and  Connecticut.  It  "was  conceded  generally 
that  the  Democratic  ticket  had,  without  question,  184 
electoral  votes — within  one  of  an  indisputed  consti 
tutional  majority  of  the  electoral  votes  necessary  for 
the  choice  of  a  President  and  Vice-President;  while 
it  was  in  like  manner  conceded  that  the  Republican 
ticket  had  172  electoral  votes ;  leaving  the  eight  electoral 
votes  of  Louisiana,  the  four  electoral  votes  of  Florida, 
and  one  electoral  vote  of  Oregon,  disputed,"  as 
Alexander  H.  Stephens  explained  in  The  International 
Review,  January,  1878,  page  103.  Thus  it  began  to 
appear,  as  in  other  instances,  that,  should  the  Demo 
cratic  contention  be  found  to  be  correct,  the  popular 
will  stood  endangered  by  the  cumbersome  electoral 
machinery.  Not  until  December  6  were  the  electors 
to  meet  in  their  respective  States,  and  in  the  mean 
time  the  official  announcement  declaring  which  set 
of  electors  had  been  elected,  rested  with  the  respective 
State  boards  of  canvassers,  whose  functions  were  deter- 

10  Doctor  Bigelow,  a  warm  admirer  of  Tilden,  gives  the 
figures 

Total    vote    for    Tilden 4,300,316 

"      Hayes 4,  036,016 

Tilden's  majority 264,  300 

John  Bigelow,  2  The  Life  of  Tilden,  8.  Doctor  Peck,  following 
Johnson,  gives  250,000.  Twenty  Years  of  the  Republic,  15. 
Doctor  Rhodes  gives  the  figures  as  264,000.  7  History  of  the 
United  States,  246. 


The  Election  21 

mined  entirely  by  the  law  of  the  State  for  which  they 
acted.  Readily  it  was  foreseen  that  much  depended 
upon  the  canvass  by  these  local  boards  in  the  disputed 
States,  and  the  Republicans  lost  no  u.ne  in  training  their 
heavy  guns  upon  the  members. 

As  soon  as  it  was  known  what  the  Democrats  claimed 
the  returns  upon  their  face  showed,  J.  Donald  Cameron, 
Grant's  Secretary  of  War,  "with  perfect  frankness," 
testifies  Col.  A.  K.  McClure,  who  speaks  from  personal 
knowledge,  averred  that  he  meant  "to  force  the  re 
versal"  of  the  verdict  shown  by  the  returns  of  the  dis 
puted  States.  Whether  or  not  there  was  any  general 
plot,  as  is  charged  by  some,  on  the  part  of  the  Repub 
licans  to  use  all  means  at  their  command,  fair  or 
foul,  to  secure  a  final  decision  in  their  favor,  probably 
may  not  be  certainly  known.  The  fact  remains  that 
the  canvassing  boards,  however  much  or  little  influenced 
by  Republican  leaders  we  shall  subsequently  see,  did 
eliminate  from  the  returns,  as  certified  to  them,  such 
a  number  of  Democratic  votes  as  led  the  Republican 
electors  to  assert  the  right  to  cast  the  electoral  vote  of 
South  Carolina,  Florida,  and  Louisiana.  The  Demo 
cratic  electors  hung  stoutly  to  the  claim  that  they 
alone  had  been  rightfully  and  legally  chosen  by  the 
people  and  therefore  had  the  exclusive  right  to  cast 
the  electoral  vote.  Each  set  of  electors  proceeded 
to  discharge  what  it  claimed  to  be  its  rightful  functions ; 
and  so  it  was  that  from  these  three  States  two  sets 
of  certificates,  one  claiming  to  cast  the  electoral  vote 
for  Tilden  and  the  other  for  Hayes,  were  sent  to  the 
seat  of  the  Federal  government.  Each  set  had  met 
and  had  voted  upon  the  day  indicated  by  the  Federal 
law,  sending  along  with  its  respective  certificate  the 


22  The  Hayes-Tilden  Contest 

warrant  which  it  claimed  to  be  the  legal  and  valid 
authority  of  the  State  authorizing  the  action.  Which 
of  these  should  the  Federal  counting  power  accept  as 
the  voice  of  the  State? 

Aside  from  the  legal  questions  to  which  this  condi 
tion  gave  rise,  and  to  review  which  it  is  our  pur 
pose,  it  will  help  to  a  proper  historic  perspective  to 
remember  that  the  grounds  upon  which  the  Repub 
licans  claimed  that  the  vote  as  returned  from  the 
county  officers  should  not  be  taken  as  indicated  on  the 
face  of  the  returns,  were  "that  the  Republicans  had 
not  opportunity  to  vote  in  the  South,  and  the  only 
way  to  meet  such  frauds  was  by  the  strong  arm  of 
the  government."11  Elaine  expresses  the  contention  of 
his  party  when  he  says :  "In  South  Carolina  and 
Louisiana,  not  only  was  there  a  considerable  number 
of  white  Republicans,  but  in  each  State  the  colored 
men  (who  were  unanimously  Republican)  outnumbered 
all  the  white  men.  The  disparity  in  South  Carolina 
was  so  great  that  the  white  population  was  but  289,000 
while  the  colored  population  was  415,000.  /In  Florida 
the  two  races  were  nearly  equal  in  number,  and  owing 
to  a  large  influx  of  white  settlers  from  the  North  the 
Republicans  were  in  a  decided  majority.  Upon  an  hon 
est  vote  a  Republican  majority  in  each  of  the  three 
States  was  indisputably  assured."12 

The  Democrats  replied  that  there  had  been  an  hon 
est  vote  and  that  large  numbers  of  the  negroes  had 
voted  the  Democratic  ticket.  The  truth  of  this  latter 
assertion  was  abundantly  established,  especially  as  to 
Florida,  when  various  congressional  committees  after 
wards  took  evidence  touching  the  conduct  of  the 

1 !  McClure,  265.       *  2    2  Twenty  Years  in  Congress,  581. 


The  Election  23 

election.  But  so  bitter  were  the  parties  in  their  de 
nunciation  of  each  other  that  intense  excitement  ensued. 
Threats  of  violence  from  both  parties  murmured 
ominously  from  various  sections  of  the  country.13  The 
Democrats  were  as  profoundly  in  earnest  as  the  Re 
publicans  were  bitterly  determined. 

November  10,  only  three  days  after  the  election, 
and  before  all  the  returns  from  the  disputed  States  had 
been  officially  reported  by  the  county  canvassers,  Presi 
dent  Grant  sent  to  General  Sherman,  in  command  of 
the  army,  the  following  significant  order :  "Instruct 
General  Augur  in  Louisiana  and  General  Ruger  in 
Florida  to  be  vigilant  with  the  forces  at  their  com 
mand  to  preserve  peace  and  good  order,  and  to  see 
that  the  proper  and  legal  boards  of  canvassers  are  un 
molested  in  the  performance  of  their  duties.  Should 
there  be  any  ground  of  suspicion  of  a  fraudulent  count 
on  either  side  it  should  be  reported  and  denounced  at 
once.  No  man  worthy  of  the  office  of  President  should 
be  willing  to  hold  it  if  counted  in  or  placed  there  by 
fraud.  Either  party  can  afford  to  be  disappointed  by 
the  result." 14  Within  a  few  hours  the  President  fol 
lowed  this  with  other  telegrams  concentrating  the  / 
Federal  troops  in  the  disputed  States.  Thus  the  com-  * 
mander-in-chief  of  the  armies  of  the  United  States 
authorized  army  officers  to  decide  who  were  the  "proper 
and  legal  boards  of  canvassers"  and  to  determine  the 
grounds  "of  suspicion  of  a  fraudulent  count," — a  judicial 
inquiry  full  of  dangerous  possibility,  and  in  times  of 
peace  by  no  means  belonging  either  to  the  executive  or 

13  Cong.     Record:     44    Cong.,     2nd    sess.;    Proceedings    of    the 
Electoral    Commission,    3. 

"Bigelow,  Life  of  Tilden;   2   Elaine,   581. 


24  The  Hayes-Tilden  Contest 

to  the  military  arm  of  the  government.  This  executive 
stroke  lent  moral,  if  not  actual  physical,  encourage 
ment  to  the  Republican  majorities  on  the  canvassing 
boards  of  the  disputed  States.  The  order  left  the 
unarmed  Democracy  of  those  States  to  contend  for 
their  position  under  the  literal  muzzle  of  Federal  guns. 

As  the  days  went  by  the  situation  became  more 
critical.  Writing  in  1878,  Thomas  M.  Cooley,  then 
chief  justice  of  the  supreme  court  of  Michigan,  gives 
a  conservative  picture  of  the  country  under  the  exist 
ing  conditions  when  he  says  :  "For  reasons  which  need 
not  be  stated,  the  people  of  the  country  had  lost  confi 
dence  in  many  of  the  active  men  on  both  sides  in  sev 
eral  of  the  Southern  States,  and  each  party  believed 
that  its  opponent  would  resort  to  any  measures,  not  ex 
cluding  violence  to  the  extent  of  taking  human  lives,  to 
give  the  votes  to  their  party  candidates.  The  whole 
country  was  excited  by  charges  of  crime  and  outrage, 
and  each  party  believed  that  wrongs  were  being  com 
mitted  for  personal  and  party  ends,  though  each  party 
charged  the  wrongs  upon  its  opponents.  For  three 
months  the  country  was  presented  with  the  spectre  of 
a  disputed  succession ;  and  so  intense  was  the  feeling 
that  it  seemed  highly  probable  that,  at  the  risk  of  a 
civil  war,  one  House  of  Congress  would  declare  one 
candidate  chosen,  and  the  other  would  declare  the 
election  of  his  opponent."15 

What  should  be  done? 

The  President  took  alarm  and  "quietly  strengthened 
the  military  forces  in  and  about  Washington"  and  "saw 
that  the  requisite  military  force  was  at  the  Capitol." 18 

15  The  International   Review,   V.,   200. 
»  2  Elaine,   282. 


The  Election  25 

While  the  country  speculated,  partizans  on  both  sides 
threatened;  the  Federal  army  kept  busy  burnishing  its 
bayonets;  and  in  the  three  disputed  States  two  sets  of 
men  claimed  the  lawful  and  moral  right  to  cast  their 
electoral  votes.  Marshalling  its  forces,  the  army 
hovered  about  the  Republican  claimants,  encamping 
about  the  places  of  their  action  or  deliberations  in 
disputed  districts.  The  seriousness  of  the  situation 
was  all  the  more  increased  because  of  the  fact  that  the 
best  legal  talent  of  America  was  apparently  honestly 
divided  in  opinion  as  to  where  lay  the  legal  remedy, 
and  as  to  what  was  the  proper  solution  of  the  questions 
that  had  arisen  and  had  daily  continued  urgently  to 
demand  answer. 

What  could  be  done? 

It  was  proposed  that  committees  of  prominent  men 
be  sent  to  the  disputed  States  to  overlook  the  count 
ing  by  the  State  canvassing  boards.  Distinguished  men, 
men  who  had  or  who  were  holding  high  positions  of 
honor  or  trust  in  military  or  civil  life,  and  in  some  in 
stances  in  both,  from  the  two  parties  went  to  the 
capitals  of  Florida,  Louisiana,  and  South  Carolina. 
The  Republicans  who  had  gone  for  the  purpose  of 
seeing  "a  fair  count"  returned  to  Washington  declaring 
that  their  brother  Republicans,  who  were  in  the  ma 
jority  on  the  boards  in  the  disputed  States,  were  in 
the  right  in  exercising  judicial  power  by  which  they 
threw  out  enough  votes  to  count  in  the  Hayes  claimants ; 
and  that  it  was  "a.  fraudulent  count"  because  a  fraudu 
lent  election,  by  which  the  Democrats  claimed  a  ma 
jority  for  the  Tilden  men  as  shown  by  the  returns. 
"The  Republicans  had  the  whole  machinery  of  the 
Government"  in  their  hands  in  the  disputed  States. 


26  The  Hayes-Tilden  Contest 

"The  returning  boards,  which  had  been  created  by  the 
carpet-bag  rule  of  the  South,"  1T  were  sustained  in  every 
instance  by  the  visiting  Republican  committees,  in 
setting  aside  the  returns  on  the  grounds  of  alleged 
fraud  in  voting  at  various  precincts  or  in  the  conduct 
of  the  election,  and  that  there  had  been  such  intimida 
tion  as  prevented  many  Republicans  from  even  attempt 
ing  to  cast  their  votes.  The  visiting  Democratic  com 
mittees  returned  to  Washington  declaring  with  equal 
earnestness  that  the  face  of  the  returns  which  had 
come  in  from  the  various  counties  of  the  respective 
States  showed,  not  only  the  correct  result,  but  a  result 
reached  upon  a  vote  fairly  and  honestly  cast  without 
fraud  or  intimidation.  They  insisted  that  the  canvassing 
boards  had  no  judicial  powers,  that  their  functions  were 
ministerial  only,  that  the  canvassing  boards  properly 
could  only  count  the  votes  as  certified  to  them  by 
county  officers,  and  that  an  alteration  of  the  returns 
under  the  existing  facts  was  without  warrant.  As  at 
first,  so  the  matter  stood  when  the  visiting  committees 
had  completed  their  work.  Nothing  whatever  in  fur 
thering  a  solution  had  been  accomplished,  but  the  popu 
lar  excitement  had  been  greatly  augmented.  Each  side 
remained  equally  persistent  and  unalterably  firm  in 
its  contention  for  the  right  of  its  claims. 

What  was  done? 

As  a  last  hope  of  an  amicable  settlement,  all  eyes 
finally  turned  toward  Congress.  To  Congress,  or  to 
some  branch  of  that  arm  of  the  government,  or  to 
some  officer  of  that  body  or  some  branch  thereof,  the 
Constitution  had  left  the  power  to  count  the  electoral 
votes  of  all  the  States,  and  if  there  should  be  a  majority 
"McClure,  264. 


The  Election  27 

for  any  ticket  to  declare  the  persons  receiving  such 
majority  respectively  the  President  and  Vice-President. 
Congress  entered  upon  the  stupendous  task;  out  of 
uncertainty  and  clamorous  discord,  Congress  laid  the 
foundation  for  one  of  the  most  peculiar  chapters  in 
American  history. 


II. 

The  Electoral  Commission. 

THE  situation  was  entirely  new  to  Congress. 
Immediately  after  the  members  of  the  con 
stitutional  convention  had  signed  the  Con 
stitution  on  September  17,  1787,  the  con 
vention  passed  a  resolution  expressing  the  opinion  that, 
"as  soon  as  the  conventions  of  nine  States  shall  have 
ratified  the  Constitution,  the  United  States  in  Congress 
assembled  shall  fix  a  day  on  which  electors  shall  be 
appointed  by  the  States  which  shall  have  ratified"  the 
Constitution,  the  time  and  place  of  the  meeting  of  the 
electors,  and  the  time  and  place  for  commencing  pro 
ceedings  under  the  Constitution  being  named;  that, 
notice  of  this  having  been  given,  the  Senators  and 
Representatives  should  be  elected;  that  the  electors 
should  meet  on  the  day  fixed,  and  vote  and  transmit 
their  vote  to  the  "Secretary  of  the  United  States  in 
Congress  assembled;"  that  the  Senators  and  Repre 
sentatives  should  convene  at  the  time  and  place;  and 
that  the  "Senators  shall  appoint  a  president  of  the 
Senate  for  the  sole  purpose  of  receiving,  opening,  and 
counting  the  votes  for  President;  and  after  he  shall 
be  chosen,  Congress,  together  with  the  President,  shall, 
without  delay,  proceed  to  execute  this  Constitution."1 

The  requisite  number  of  States  having  ratified  the 
Constitution,  the  States  and  Congress  carried  out  the 
suggestions  of  this  resolution,  and  on  April  6,  1789,  the 
latter  assembled  for  the  purpose  of  counting  the 

*5    Elliot,    602,    Note    266;    8    Ann.    Stats.    251. 
28 


The  Commission  29 

first  electoral  votes.  A  president  of  the  Senate  was 
chosen,  and  one  member  from  each  House  was  ap 
pointed  "to  sit  at  the  clerk's  table  to  make  a  list  of  the 
votes  as  they  shall  be  declared."  2  The  counting  passed 
without  dispute  or  important  incident. 

At  the  counting  of  the  electoral  votes  cast  at  the 
second  election,  the  tellers  were  appointed,  one  from 
the  Senate  and  two  from  the  House;  the  Vice-Presi- 
dent,  as  president  of  the  Senate,  "opened,  read,  and 
delivered  to  the  tellers"  the  certificates  of  "the  several 
electors,  "who,  having  examined  and  ascertained  the 
votes,  presented  a  list  of  them  to  the  Vice-President, 
which  list  was  read  to  the  two  Houses."  With  no 
important  variation,  except  the  "twenty-second  joint 
rule,"  adopted,  according  to  Colfax  while  speaker  of 
the  House,  to  avoid  the  scenes  of  confusion  which 
accompanied  the  count  in  1857,*  the  counting  was  thus 
conducted  to  1877. 

In  1800  it  began  to  appear  that  objections  to  count 
ing  certain  electoral  votes  might  arise;  and  the  Senate 
adopted,  by  a  vote  of  16  to  n,  practically  what  was 
afterward  embraced  in  the  "twenty-second  joint 
rule,"  but  the  House  failed  to  concur,  and  this  rule  was 
not  accepted  until  1865.*  As  adopted  by  the  two  Houses 
in  February,  1865,  this  joint  rule  provided  that  no 
"electoral  vote  objected  to  shall  be  counted,  except  by 
concurrant  votes  of  the  two  Houses." G  But  this  rule 
suggested  no  way  for  determining  which  votes  of 
two  sets  of  claimants  from  any  State  should  be  counted. 
The  Constitution  provides  that  where  no  person  has 

•  Stanwood,   A  History   of  the  Presidency,   29. 

3  Cong.   Globe,   1066-67:    40   Cong.,   3rd  sess. 

4  Cong.   Rec.:  44  Cong.,  2nd  sess.;   Stanwood,  Hist.  Pres.,   67. 

5  2   Elaine,   582;   Cong.   Rec.,   Id. 


30  The  Hayes-Tilden  Contest 

a  majority  of  the  whole  number  of  electors  appointed, 
the  choice  shall  fall  to  the  lower  House  where  in  pro 
ceeding  to  elect  a  President  the  State  shall  constitute 
the  unit  of  vote.  The  Republicans  refused  to  con 
cede  that  this  provision  vested  the  House  with  the 
power  and  right  to  determine  between  disputant- 
electors  as  to  the  right  to  vote. 

With  no  rule  furnishing  a  solution,  with  no  precedent, 
and  with  the  simple  command  of  the  Constitution  that 
in  the  presence  of  the  two  Houses  the  president  of  the 
Senate  should  open  the  certificates  of  the  electors,  and 
that  the  votes  shall  then  be  counted,  when  the  Federal 
counting  power  came  to  count  the  electoral  votes  in 
1877,  she  found  herself  confronted  with  rival  claim 
ants  respectively  clamoring  to  speak  for  three  States. 
Previous  to  this  time  there  had  been  objections  to  count 
ing  the  electoral  votes  of  certain  States,  but  never 
before — and  fortunately  never  since — had  the  ques 
tion  arisen  as  to  which  persons  a  certain  State  had 
appointed  to  cast  her  electoral  vote.  No  more  important 
question  to  republican  liberty ;  no  more  far  reach 
ing  question  of  American  government,  has  ever  arisen 
than  this  which  met  the  Forty-fourth  Congress  of  the 
United  States.  The  members  of  both  Houses  seemed 
to  have  realized  the  tremendous  import  of  the  situa-. 
tion,  and  the  greater  numbers  of  both  parties  struggled 
honestly  to  find  a  fair  solution  and  one  that  would 
bring  peace  to  a  sorely  depressed  country.  By  no  means 
were  divergent  opinions  marked  by  party  lines.  For 
the  most  part,  however,  as  Elaine  tells  us,  "It  was  con 
tended  by  Republicans  that  the  Vice-President  alone 
had  power  to  open,  count  the  electoral  votes,  and  de 
clare  the  result,  the  two  Houses  of  Congress  being 


The  Commission  31 

present  merely  as  spectators." 8  Senator  T.  W.  Ferry 
of  Michigan,  the  then  pro  tem.  president  of  the  Sen 
ate  (Vice-President  Wilson  being  dead),  was  a  loyal 
Republican;  "a  partizan,"  Rhodes  says  of  him,  "who 
could  be  depended  upon  to  carry  out  the  behests  of 
his  party."  The  Democrats  were  unwilling  to  risk 
the  president  of  the  Senate,  and  there  was  no  way  by 
which  the  Republican  view  could  be  enforced  without 
consent  of  the  House.  The  Senate  repudiated  the  twen 
ty-second  joint  rule,  and  being  Republican  while  the 
House  was  Democratic,  a  disastrous  dead-lock  or  de 
plorable  revolution  by  one  or  the  other  branch  was  im 
minent, — and  in  the  wake  of  either  most  certainly  would 
have  followed  civil  war.  Many  truly  patriotic  of  both 
parties  in  both  branches  of  Congress  and  of  the  country 
generally  were  seriously  alarmed. 

Plan  after  plan  was  rejected  in  the  conferences  of 
the  respective  parties.  Some  advocated  submitting  the 
disputed  questions  to  the  Supreme  Court  of  the  United 
States;  others  preferred  the  Chief  Justice  of  the  court 
and  a  member  from  each  House  of  Congress.  The 
earliest  public  step  inaugurating  the  movement  leading 
directly  to  the  result  finally  reached,  was  taken  De 
cember  7,  1876,  by  McCrary,  Republican,  of  Iowa,  who 
introduced  a  resolution  in  the  House  of  Representa 
tives,  authorizing  a  committee  of  fi^e  from  the  House 
to  act  with  a  like  committee  from  the  Senate  "to 
prepare  and  report  a  plan  by  which  the  electoral  votes 
can  be  counted  and  the  result  declared  by  a  tribunal 
whose  authority  none  can  question  and  whose  decision 
all  will  accept  as  final." T  This  was  referred  to  the 

8  2   Elaine,  583. 

7  Cong.   Rec.   91:  44   Cong.,   2nd  sess. 


32  The  Hayes-Tilden  Contest 

committee  on  the  judiciary.  On  December  14,  Proctor 
Knott,  Democrat,  of  Kentucky,  a?  chairman  of  the 
committee,  referred  the  resolution  back,  offering  a 
substitute  not  materially  different,  and  naming  a  com 
mittee  of  seven  from  each  House,  which  was  adopted. 
By  special  message  the  Senate  was  apprised  of  the 
action  of  the  House,  and  later  passed  a  similar  resolu 
tion,  naming  its  committee.8 

The  Senate  having  concurred,  there  were  appointed: 
George  F.  Edmunds  of  Vermont,  Oliver  P.  Morton 
of  Indiana,  Frederick  T.  Frelinghuysen  of  New  Jersey, 
Roscoe  Conkling  of  New  York,  Logan  of  Illinois  hav 
ing  refused  to  serve,  Republicans;  Allen  G.  Thurman  of 
Ohio,  Thomas  F.  Bayard  of  Delaware,  and  Matt.  W. 
Random  of  North  Carolina,  Democrats.  For  its  part 
of  the  committee  the  House  appointed  Representatives 
Henry  B.  Payne  of  Ohio,  Eppa  Hunton  of  Virginia, 
Abram  S.  Hewitt  of  New  York,  William  M.  Springer 
of  Illinois,  Democrats;  George  W.  McCrary  of  Iowa, 
George  F.  Hoar  of  Massachusetts,  and  George  Willard 
of  Michigan,  Republicans.  This  joint  committee  were 
directed  to  discover  and  report  for  the  consideration 
of  Congress  "a  measure,  either  of  a  legislative  or  other 
character,  as  may,  in  their  judgment,  be  best  calculated 
to  accomplish  the  lawful  counting  of  the  electoral  votes 
and  the  best  disposition  of  all  questions  connected 
therewith,  and  a  due  declaration  of  the  result." 

It  seems  that  the  two  committees,  rather  the  two 
branches  from  the  respective  Houses,  held  separate 
meetings.  When  the  House  committee  met  January  3, 

8  Ib.  215,  275,  373.  For  a  brief  chronological  outline  of  the 
proceedings,  see  Ascher  C.  Hinds,  3  Precedents  Ho.  Rep.,  240 
et  seqr. :  Ho.  Doc.  355,  59  Cong.,  2nd  sess. 


The  Commission  33 

1877,  the  same  differences  manifested  themselves  that 
had  previously  developed  in  party  ranks.  Payne  was 
strongly  committed  to  the  proposition  that  the  function 
of  the  president  of  the  Senate  should  be  limited  to 
simply  opening  the  returns.  Hunton  pressed  this  propo 
sition  upon  the  consideration  of  the  committee.  Hoar 
and  McCrary  declared:  "We  are  unwilling  to  commit 
ourselves  to  the  principle  of  the  Payne  resolution.  We 
can  conceive  of  a  condition  of  things  wherein  somebody 
might  have  to  take  the  bull  by  the  horns  and  count  the 
vote,  or  the  country  would  be  plunged  into  anarchy 
and  chaos.  Suppose  that  the  House  should  insist  that 
there  had  been  no  election  and  refuse  to  participate 
in  the  count.  This  might  constitute  an  emergency 
where  the  president  of  the  Senate,  in  the  absence  of 
any  legislation  restricting  his  duties  under  the  Con 
stitution,  might  be  called  upon  to  act."  "Tn  such  a  con 
flict,"  retorted  Hewitt,  "between  the  president  of  the 
Senate  and  the  House  of  Representatives,  would  you 
sooner  intrust  the  liberties  of  the  people  to  a  single 
Senator,  who  happened  to  be  president  of  the  Senate, 
than  to  the  representatives  of  the  entire  American 
people  ?" 9  However,  Payne  seems  to  have  known  the 
failing  of  the  obdurate  members.  He  prepared  a  colla 
tion;  "under  the  genial  influence  of  the  food  and  drink 
and  kindly  manner  of  the  host,  the  members  of  the 
committee  began  to  thaw  out,"  and  it  was  finally  agreed 
that  a  commission  consisting  of  the  five  senior  associate 
justices  should  be  constituted  to  decide  the  contro 
verted  question.  But  on  January  12  a  joint  meeting 

9  Milton  H.  Northrup,  Secretary  of  the  House  Committee, 
Century  Magazine,  October,  1901,  925,  926,  who  is  also  quoted 
by  Rhodes. 


34  The  Hayes-Tilden  Contest 

of  the  committee  was  held,  when  it  was  agreed  that 
there  should  be  appointed  a  commission  of  fifteen; 
five  from  each  House  and  five  from  the  Supreme  Court. 
The  names  of  Justices  Clifford,  Swayne,  Davis,  Miller, 
Field,  and  Strong  were  to  be  put  into  a  hat.  One 
was  to  be  withdrawn  and  the  others  were  to  constitute 
the  judicial  members  of  the  commission.  Decided 
opposition  on  the  part  of  the  Democrats  to  the  lot 
feature  developed.  They  declared  they  would  not 
"consent  that  the  great  office  of  President  should  be 
raffled  off  like  a  Thanksgiving  turkey,"  whereupon  the 
plan  reported  was  finally  adopted.10 

On  January  18  this  committee  reported,  recommending 
a  bill  that  provided  that  at  one  o'clock  post  meridian  on 
the  first  Thursday  in  February,  1877,  both  Houses  of 
Congress  should  meet  in  the  Hall  of  the  House  of 
Representatives  at  the  Capitol.  The  president  of  the 
Senate  was  named  as  the  presiding  officer.  The  papers 
from  the  several  States  purporting  to  be  the  certificates 
of  the  electoral  votes,  were  to  be  opened  in  the  pres 
ence  of  the  two  Houses;  tellers,  two  appointed  by 
each  House,  were  to  read  the  papers  in  the  presence 
and  hearing  of  the  gathering  and  make  a  list  of  the 
votes  as  they  appeared  from  these  certificates.  In  case 
there  was  only  one  return  from  a  State,  the  president  of 
the  Senate  was  required  to  call  for  objections.  Should 
there  be  objections,  they  were  required  to  be  in  writ 
ing,  concise  and  without  argument,  and  to  be  signed 
by  at  least  one  member  from  each  House.  When  all 
objections  so  made  were  received,  the  two  Houses 
were  to  separate  and  then  act  thereon  under  the  re 
striction:  "No  electoral  vote  or  votes  from  any  State 

10  See  Northrup's  article  and  Bigelow's  Life  of  Tilden. 


The  Commission  35 

from  which  but  one  return  has  been  received  shall  be 
rejected,  except  by  the  affirmative  vote  of  the  two 
Houses." 

Where  there  should  be  "more  than  one  return,  or 
paper  purporting  to  be  the  certificates  of  electoral  votes 
given  by  persons  claiming  to  be  duly  chosen  electors," 
all  such  returns  and  papers  were  required  to  be  opened 
"in  the  presence  of  the  two  Houses  when  met  as  afore 
said,  and  read  by  the  tellers,  and  all  such  returns  and 
papers  shall  thereupon  be  submitted  to  the  judgment 
and  decision  as  to  which  is  the  true  and  lawful  electoral 
vote  of  such  State,  of  a  commission  constituted  as 
follows,  namely:"  five  Senators  appointed  by  the  Sen 
ate;  five  Representatives  appointed  by  the  House;  five 
associate  justices  of  the  Supreme  Court  of  the  United 
States,  four  respectively  assigned  to  certain  judicial 
circuits  specifically  named,  who  were  to  select  the 
fifth, — thus  taking  five  of  the  nine  members  of  the 
court.  The  members  of  the  Commission  were  re 
quired  to  take  a  prescribed  oath,  and  when  organized 
either  House  was  forbidden  to  dissolve  the  commis 
sion  or  to  withdraw  any  of  its  members.  Objections 
were  to  be  submitted  under  the  same  restrictions  as 
in  case  of  one  return. 

The  law  defined  the  powers  of  the  Commission  thus : 
"When  all  such  objections  so  made  to  any  certificate, 
vote,  or  paper  from  a  State  shall  have  been  received, 
and  read,  all  such  certificates,  votes,  and  the  papers  so 
objected  to,  and  all  papers  accompanying  the  same, 
together  with  such  objections,  shall  be  forthwith  sub 
mitted  to  said  Commission,  which  shall  proceed  to  con 
sider  the  same,  with  the  same  powers,  if  any,  now 
possessed  for  that  purpose  by  the  two  Houses  acting 


36  The  Hayes-Tilden  Contest 

separately  or  together,  and,  by  .a  majority  of  votes, 
decide  whether  any  and  what  votes  from  such  State 
are  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  how  many  and  what  persons  were 
duly  appointed  electors  in  such  State,  and  may  therein 
take  into  view  such  petitions,  depositions,  and  other 
papers,  if  any,  as  shall,  by  the  Constitution  and  now 
existing  law,  be  competent  and  pertinent  in  .such 
consideration."  n  The  decision  was  to  be  in  writing  and 
to  be  entered  upon  the  journal  of  each  House.  The 
counting  of  the  votes  was  then  to  proceed  in  conformity 
therewith,  "unless,  upon  objection  made  thereto  in 
writing  by  at  least  five  Senators  and  five  members  of  the 
House  of  Representatives,  the  two  Houses  shall  sep 
arately  concur  in  ordering  otherwise,  in  which  case  such 
concurrent  order  shall  govern." 

Debate  developed  an  earnest  and  extensive  opposition 
that  was  not  confined  to  either  party.  Roscoe  Conkling, 
Republican,  made  a  lengthy  argument  strongly  urging 
the  measure ;  Bayard,  Democrat,  of  Delaware,  declared 
the  bill  offered  "a  peaceful  conquest  over  partizan 
animosity,"  being  "grounded  on  reason  and  justice."12 
James  A.  Garfield,  Republican,  of  Ohio,  declared  the 
proposed  law  dangerous  and  cumbersome,  and  vigor 
ously  protested  that  it  was  "unwarranted  by  the  Consti 
tution  ;"  while  Thurman,  Democrat,  his  colleague,  lent 
his  influence  to  the  bill,  pointing  out  his  opposition  to 
an  attempt  either  by  Congress  or  the  Commission  to  go 
to  the  bottom  of  the  election,  saying  that  the  proposed 
law  contemplated  no  more  than  to  learn  the  decision  of 
the  State  as  between  her  contesting  electors.  Foster 

11  Proceedings  of  the  Commission,  5. 
"Cong.  Rec.,   800;  44  Cong.,  2nd  sess. 


The  Commission  37 

of  Ohio  wanted  to  submit  the  questions  to  the  Supreme 
Court;  while  Frelinghuysen  offered  as  an  amendment 
a  measure  by  which,  in  cases  where  the  two  Houses 
should  disagree  as  to  which  of  disputed  votes  should 
be  counted,  the  question  would  be  submitted  to  the 
decision  of  the  president  of  the  Senate,  the  speaker  of 
the  House,  and  the  Chief  Justice  of  the  Supreme  Court 
of  the  United  States.  Twenty  Republican  Senators 
voted  with  him  for  this  amendment,  but  it  was  lost. 
Morton,  Republican,  in  fairness  disqualified  himself 
for  the  place  he  was  afterward  given  on  the  Commission, 
by  saying:  "I  believe  that  Rutherford  B.  Hayes  has 
been  elected  President  of  the  United  States;  he  has 
been  elected  under  the  forms  of  law  and  according  to 
law,  and  that  he  is  elected  in  the  hearts  of  the  people." 
He  bitterly  opposed  the  bill,  pointing  out  that  the  mem 
bers  of  the  Commission  named  by  it  would  decide  along 
party  lines,  and  that  the  promoters  of  the  bill  had 
admitted  this  in  naming  the  Supreme  Court  judges  in 
the  manner  proposed  by  the  bill;  that  this  selection  by 
circuits  rather  than  by  name  was  "a  harmless  little  sham 
that  deceives  nobody." 13  Altogether,  Morton's  speech, 
the  only  opposition  by  a  member  of  the  committee  re 
porting  the  bill,  presented  the  strongest  and  clearest 
arguments  against  it.  Sherman,  speaking  more  truly 
than  was  suspected,  said  that  most  likely  the  decision 
of  the  Commission  would  be  determined  by  the  fifth 
member  of  the  Supreme  Court.  Hoar,  while  advocating 
the  bill,  admitted  that  as  one  of  the  committee  who 
drew  it  he  had  been  actuated  by  party  reasons  in  the 
manner  of  naming  the  members  of  the  Supreme  Court. 

Each  day  of  debate  in  Congress  only  added  to  the  ten- 

13  Ib.   799,   800,   802,   973. 


38  The  Hayes-Tilden  Contest 

sion  of  the  country  generally;  and,  before  debate  had 
ended,  business  interests  in  all  sections  brought  their 
weight  to  bear  upon  the  members  of  Congress  in  urgent 
appeals  for  the  passage  of  the  bill.  Merchants  and 
citizens  from  New  York  petitioned  for  a  favorable  vote ; 
thirty-seven  Republicans,  of  whom  Benjamin  Harrison, 
already  prominent  in  national  politics  and  an  ex- 
governor,  was  one,  with  three  Democrats  of  Indiana, 
sent  an  urgent  appeal  for  Republican  support.  Citizens 
of  Richmond,  Virginia,  added  their  appeal,  calling 
also  attention  to  the  languishing  condition  of  com 
merce.14 

The  Constitution  makes  no  specific  provision  for 
the  President  holding  his  office  longer  than  the  term  for 
which  he  is  elected.  It  simply  says :  "He  shall  hold 
office  during  the  term  of  four  years."  There  was  no 
little  uncertainty  in  Republican  quarters  as  to  what 
would  result  should  the  succession  be  undetermined 
until  after  the  expiration  of  Grant's  term.  Some  feared 
that  he  might  be  forced  to  proceed  by  quo  warranto  to 
find  someone  to  whom  he  could  deliver  the  government. 

Altogether,  such  weight  was  brought  to  bear  upon 
Congress  as  that  on  vote  January  29,  1877,  the  bill  was 
passed,  signed  by  the  President,  and  became  a  law. 
In  the  House  it  was  supported  by  191  to  86,  14  not 
voting.  Of  the  majority  158  were  Democrats  and  33 
were  Republicans;  of  the  negative  68  were  Republicans 
and  18  were  D'emocrats.  In  the  Senate  an  amendment 
which  forbade  the  commission  "to  go  behind  the 
returns"  was  lost  by  vote  of  18,  Republicans,  to  47,  27 
of  the  latter  being  Democrats.  Then  by  vote  of  47  to 
17  the  Senate  passed  the  bill.  Of  the  affirmative  26 

"Ib.    805,    869,    870,    1040. 


The  Commission  39 

were  Democrats  and  21  were  Republicans,  the  one 
Democrat  voting  in  the  negative.15 

A  most  remarkable  law!  Congress  shifted  its  re 
sponsibility  in  cases  where  there  were  two  or  more 
sets  of  opposing  claimants  to  the  right  of  exercising 
the  electoral  power  of  certain  States,  imposing  the 
burden  upon  ten  members,  calling  to  their  assistance 
five  of  the  justices  of  the  Supreme  Court  of  the  United 
States;  and  this  Commission  was  only  empowered  to 
act  "with  the  same  powers,  if  any,  now  possessed  for 
that  purpose  by  the  two  Houses  acting  separately  or 
together."  The  vast  majority  of  the  people's  representa 
tives  relinquished  their  rights  to  a  small  committee  of 
their  brethren, — and  this  committee,  having  no  powers 
or  rights  the  whole  body  of  Congress  did  not  possess, 
was  sent  to  its  task  with  no  new  light  and  in  associa 
tion  with  such  a  number  of  the  highest  branch  of  the 
Federal  judiciary  as  precluded  the  defeated  party  avail 
ing  itself  of  the  saving  clause  of  the  law,  to  wit: 
"nothing  in  this  act  shall  be  held  to  impair  or  affect 
any  right  now  existing  under  the  Constitution  and 
the  laws  to  question,  by  proceeding  in  the  judicial 
courts  of  the  United  States,  the  right  or  title  of  the  per 
son  who  shall  be  declared  elected," — "if  any  such  right 
shall  exist."  For  if  any  such  right  existed,  the  Supreme 
Court  of  the  United  States  was  disqualified  from  act 
ing  thereon  as  the  highest  branch  of  the  Federal 
judiciary,  by  virtue  of  the  fact  that  five  of  its  nine 
members  sat  with,  deliberated  upon  the  questions  which 
came  before,  voted  with,  and  adjudicated  with  the 
Commission.  A  farce  it  were  to  have  poor,  frail,  parti- 
zan  man  review  his  own  decision — especially  under 

»Ib.   913,  1056. 


40  The  Hayes-Tilden  Contest 


conditions  giving  rise  to  the  Electoral  Commission !  A 
wonderful  act,  this  bill  made  a  law  by  the  Congress  of 
the  United  States  and  approved  by  President  Grant 
on  January  29,  1877  ! 

Pursuant  to  the  provisions  of  this  compromise  act, 
the  Senate  appointed  as  its  members  of  the  Commission : 
George  F.  Edmunds  of  Vermont,  Oliver  P.  Morton  of 
Indiana,  F.  T.  Frelinghuysen  of  New  Jersey,  Thomas  F. 
Bayard  of  Delaware,  and  Allen  G.  Thurman  of  Ohio. 
Senator  Thurman  sat  during  the  Florida  case;  but, 
having  become  unable  longer  to  act,  was  replaced  by 
Senator  Francis  Kernan  of  New  York,  February  26. 
The  House  of  Representatives  named  the  following: 
H.  B.  Payne  of  Ohio,  Eppa  Hunton  of  Virginia,  Josiah 
G.  Abbott  of  Massachusetts,  James  A.  Garfield  of 
Ohio, — the  latter  afterward  our  President, — and  George 
F.  Hoar  of  Massachusetts.  Morton,  ex-governor  of 
Indiana,  was  the  only  member  of  the  joint  committee 
who  did  not  sign  the  report  proposing  the  Commission. 

The  four  justices  of  the  Supreme  Court  assigned 
respectively  to  the  first,  third,  eighth,  and  ninth  circuits 
were  made  members  of  the  Commission  by  the  terms  of 
the  law;  and  these  four  were  required  to  select  a  fifth 
from  the  remaining  five  associate  justices  of  their  bench. 
Hon.  Joseph  P.  Bradley  was  selected  and  accepted  the 
position.  Of  the  judicial  members  of  the  Commission 
this  gave :  Nathan  Clifford  of  Maine,  Democrat,  ap 
pointed  by  President  Buchanan,  Democrat;  Samuel  F. 
Miller  of  Iowa,  a  prominent  Republican  and  known  to 
be  a  decided  partizan;16  Stephen  J.  Field  of  California, 
Democrat,  appointed  by  President  Lincoln  as  a  Re 
publican  ;  William  Strong,  Republican ;  and  Joseph  P. 

"Century,   930,   Oct.,    1901. 


The  Commission  41 

Bradley,  Republican.17  Of  the  fifteen,  eight,  Miller, 
Strong,  Bradley,  Edmunds,  Morton,  Frelinhuysen,  Gar- 
field,  and  Hoar,  were  Republicans ;  the  others  were 
Democrats. 

Aside  from  the  fact  that  the  Southern  wing  of  the 
Democratic  party  naturally  shrank  from  the  results  of 
another  war,  aside  from  the  duress  under  which  the 
party  generally  stood  in  view  of  the  certainty  that 
should  a  dead-lock  occur  when  it  came  to  counting  the 
votes  the  president  of  the  Senate  would  undoubtedly 
declare  Hayes  President,  whereupon  Grant  would  em 
ploy  the  Federal  forces  to  sustain  that  declaration,  it 
is  certain  that  the  Republicans  who  favored  the  bill 
obtained  Democratic  support  by  what  proved  to  be  an 
ignis  fatuus.  Though  the  Democrats  felt  so  absolutely 
sure  that  their  cause  had  undoubted  right  behind  it, 
and  were  willing  to  submit  to  any  fair  method  of  set 
tlement,  it  is  hard  to  determine  just  what  weight  the  as 
surances  which  had  a  share  in  alluring  them  to  their  ruin 
had  upon  the  final  vote.  The  Democrats  fully  expected 
that  Judge  David  Davis  of  Illinois  would  be  selected 
as  the  fifth  man  from  the  Supreme  Bench.  They  were 
not  so  sure  of  Davis'  politics  as  they  were  of  his  sterl 
ing  honesty.  Blaine  tells  us :  "From  the  hour  when 
the  Electoral  Bill  was  reported  to  the  Senate  the  as 
sumption  was  general  that  the  fifth  justice  selected  for 
the  Commission  would  be  David  Davis.  It  was  cur 
rently  believed  that  Mr.  Abram  S.  Hewitt  had  given 
the  assurance  or  at  least  strong  intimation  that  Judge 

17  Proceedings;  Blaine,  2  Twenty  Years  in  Congress,  584; 
McClure,  Our  Presidents,  263;  John  Bigelow,  Life  of  Tilden; 
J.  S.  Black,  Essays  and  Speeches;  Foulke,  Life  of  Morton;  Edw. 
F.  Spencer,  Life  of  Thomas  F.  Bayard;  J.  P.  Bradley,  Miscel 
laneous  Writings;  James  A.  Garfield,  Works. 


42  The  Hayes-Tilden  Contest 

Davis  would  be  selected,  as  one  of  the  arguments  to 
induce  Mr.  Tilden  and  the  Democrats  to  support  the 
Electoral  Bill. 

"Originally  a  Republican,  Judge  Davis  had  for  some 
years  affiliated  with  the  Democratic  party,  and  had  in 
this  late  election  preferred  Mr.  Tilden  to  Mr.  Hayes. 
Without  any  imputation  of  improper  motives  there 
could  hardly  be  a  doubt  that  the  Democrats,  in  their 
almost  unanimous  support  of  the  Electoral  Bill,  be 
lieved  that  Judge  Davis  would  be  selected."18  E.  Benj. 
Andrews  says  Davis  was  "a  neutral  with  Democratic 
leanings,  who  had  been  a  warm  friend  of  President 
Lincoln's  but  an  opponent  of  Grant."1  In  the  joint 
meeting  of  the  committees  that  drew  this  bill  Thurman 
and  Payne  said  Davis  was  neither  Democrat  nor  Re 
publican,  while  Frelinghuysen  regarded  him  nearer  a 
Democrat.20  Illinois  historians  tell  us  that  Davis  never 
claimed  to  be  a  Democrat;  and  that  he  was  not  a 
Democrat  is  to  some  extent  established  by  the  fact 
that  when  Vice-President  Arthur  succeeded  to  the 
Presidency  the  Republicans  made  Davis  president  of 
the  Senate.21 

Rhodes  says  that  H.  B.  Payne  told  him  that  Conkling 
had  informed  Hewitt  that  Davis  "would  certainly  be 
the  fifteenth  man."  *2  Northrup,  the  House  clerk  of  the 
special  committee,  confirms  that  as  having  been  the 
general  understanding. 

A  large  number  of  the  Democrats  having  committed 

18  2   Elaine,  584. 

18  The  U.   S.   in  Our  Own  Times,   218. 

20  Northrup,    Century,    929,   Oct.,    1901. 

31  Alex.  Davidson  and  Bernard  Stuve,  Hist.  111.,  970. 

23  Rhodes,    7   History  of  the  United    States,    263. 


The  Commission  43 

themselves  to  the  support  of  the  bill,  it  was  agreed  that 
a  vote  should  be  taken  with  as  little  delay  as  possible. 
On  January  25,  the  day  the  bill  was  introduced  in  the 
House,  the  legislature  of  Illinois  elected  Judge  Davis 
to  the  United  States  Senate.  Whether,  all  things  con 
sidered,  this  was  a  bit  of  .strategy  resorted  to  in  the 
hope  of  embarrassing  Davis  so  that  he  would  decline 
to  act  upon  the  Commission,  thus  giving  it  another  more 
partizan  Republican,  is  not,  it  seems  to  me,  certainly 
known.  If  this  were  the  purpose  of  the  Illinois  Re 
publicans,  who,  of  course,  in  such  case  must  have  acted 
under  the  influence  of  the  national  party  leaders,  it 
succeeded  admirably.  A  contemporary  Republican 
writer  ascribed  the  election  of  Davis  to  the  Inde 
pendents  assisted  by  Democrats,23  and  Rhodes  sees  no 
reason  for  rejecting  that  claim.24  The  majority  in  the 
Illinois  legislature  was  Republican.28  His  election  was 
clearly  within  the  power  of  the  Republicans.  How 
ever,  as  Davis'  term  of  service  in  United  States  Sen 
ate  would  not  begin  until  the  following  fourth  of 
March,  the  Democrats  in  Congress  did  not  believe  that 
this  election  should  or  would  prevent  his  service  upon 
the  Commission,  especially  in  view  of  the  fact  that 
before  the  time  for  the  term  to  begin  the  Commission 
must  of  necessity  have  terminated  its  work.  And  so 
in  good  faith  the  Democrats  carried  out  their  agree 
ment  to  support  the  bill,  relying  upon  the  promise  of 
the  Republicans  that  Judge  Davis  should  and  would 
serve.  In  fact,  as  Northrup  says :  "It  had  gone  too 
13  Appleton's  Annual  Cyclopaedia,  1877,  383. 

24  7   History  of  the  United   States,    263. 

25  Bigelow,    The    Supreme    Court    and    the    Electoral    Commis 
sion,    15. 


44  The  Hayes-Tilden  Contest 

far  for  either  party  to  recede  with  dignity  or  with 
honor," 26  especially  as,  before  the  vote,  there  was 
nothing  to  indicate  that  Davis  would  not  serve.  Why 
his  service  upon  the  Commission  should  have  been  of 
doubtful  propriety,  as  Rhodes  suggests  it  would  have 
been,  it  seems  to  me  only  a  partizan  Republican  can 
comprehend;  but  it  is  said  that  Davis  himself  insisted 
that  such  service  would  be  improper.27  This  was  after 
the  bill  became  a  law;  in  so  long  remaining  silent  he 
proved  himself  as  strong  a  Republican  ally  as  though  he 
had  served  and  had  held  with  the  Republican  majority. 
When  the  four  justices  met  for  the  purpose  of  nam 
ing  the  fifteenth  man,  Strong  announced  that  Davis 
would  not  .serve.  "I  will  not  believe  it,"  Clifford  is 
said  to  have  retorted,  "unless  I  should  absolutely  have 
it  from  his  lips  or  over  his  hand."  Whereupon,  it  is 
said,  Strong  later  brought  a  statement  signed  by  Judge 
Davis  in  which  he  refused  to  serve.28 

Judge  Bradley  of  New  Jersey  seemed  to  offer  the  only 
other  opportunity  of  finding  from  the  Supreme  Bench 
a  man  at  all  acceptable  to  the  Democrats.  Pleasing 
in  his  personality,  he  had  ingratiated  himself  with 
the  Southern  people  by  his  judicial  opinion  holding 
what  is  known  as  the  Enforcement  Act  unconstitutional ; 
and  for  some  time  he  had  presided  acceptably  over 
the  Southern  Federal  circuit.  He  was  aware  of  the 
fact  that  his  brothers  of  the  bench  had  been  chosen 
because  of  their  political  predilections,  and  he  felt 
keenly  the  fact  that  upon  his  opinion  would  rest  the 

2«  62   Century,   934. 

27  Stanwood,   A   History   of  the   Presidency    (1904),    388. 

28  Conversation   of  H.   B.   Payne  with   Rhodes:    7   Hist.    U.    S. 
264. 


The  Commission  45 

responsibility  for  the  decision  that  the  Commission 
should  reach.28  However,  when  notified  that  he  had 
been  selected,  he  accepted  the  position. 

January  31,  1877,  the  Commission  organized,  Mr. 
Justice  Clifford  presiding.  A  brief  set  of  rules  was 
adopted  providing  for  the  submission  of  evidence  and 
that  counsel  might  be  heard.  On  February  I,  as  pro 
vided  in  the  law,  the  two  Houses  met  in  joint  meet 
ing  in  the  Hall  of  the  House  of  Representatives,  the 
president  pro  tempore  of  the  Senate  presiding.  Both 
Democrats  and  Republicans  presented  the  most  cheer 
ful  front,  and  confidence  and  general  good  humor 
prevailed.30  At  three  o'clock  of  the  same  day  the 
Commission  met  in  the  Supreme  Court  room  in 
another  part  of  the  Capitol;  the  judges,  wearing  their 
judicial  robes,  sat  in  the  center,  with  the  Senators  on 
the  right  and  the  Representatives  to  the  left.  Presi 
dent  Clifford  notified  the  president  of  the  Senate  and 
the  speaker  of  the  House  that  the  Commission  was 
"ready  to  proceed  to  the  performance  of  its  duties." 

29  Joseph  P.   Bradley,   Miscellaneous  Writings,   7,    9. 
80  Monroe,    531. 


III. 

The  Certificates— The 
Impeachments, 

ON  February  i  the  president  of  the  Senate, 
presiding  over  the  two  Houses  in  joint  meet 
ing,  was  proceeding  to  open  communica 
tions  purporting  to  be  the  electoral  votes 
from  the  several  States,  that  the  votes  might  be  counted. 
Florida  having  been  reached,  he  certified  to  the  Com 
mission :  "More  than  one  return  or  paper  purporting 
to  be  a  return  or  certificate  of  the  electoral  votes  of 
the  State  of  Florida  having  been  received  and  this  day 
opened  in  the  presence  of  the  two  Houses  of  Congress, 
and  objections  thereto  having  been  made,  the  said 
returns,  with  all  the  accompanying  papers,  and  also 
the  objections  thereto,  are  herewith  submitted  to  the 
judgment  and  the  decision  of  the  Commission,  as 
provided  by  law."1  So  important  is  it  that  we  get 
a  clear  comprehension  of  this  evidence,  that  the  fol 
lowing  detailed  description  is  justified. 

First.  Certificate  No.  I,  as  numbered  by  the  presi 
dent  of  the  Commission,  was  the  certificate  of  M.  L. 
Stearns,  dated  Dec.  6,  1876: 

"Pursuant  to  laws  of  the  United  States,  I,  Marcellus 
L.  Stearns,  governor  of  Florida,  do  hereby  certify  that 
Fred  C.  Humphreys,  Chas.  H.  Pierce,  William  H. 
Holden,  and  Thomas  W.  Long  have  been  chosen 
electors  of  President  and  Vice-President  of  the  United 
States,  agreeably  to  the  provisions  of  the  laws  of 

1  Proceedings,  29,  34. 

46 


The  Certificate  47 

said  State  and  in  conformity  to  the  Constitution  of  the 
United  States  of  America,  for  the  purpose  of  giving 
in  their  votes  for  President  and  Vice-President  of  the 
United  States,  for  the  term  prescribed  by  the  Consti 
tution  of  the  said  United  States,  to  begin  on  the  fourth 
day  of  March,"  1877.  Accompanying  this  was  the  cer 
tificates  of  these  men  that  they  had  met  pursuant  to 
this  authority  and  had  cast  their  votes  for  Hayes  for 
President,  and  for  Wheeler  for  Vice-President. 

Second.  Certificate  No.  2,  dated  on  the  same  day  and 
at  the  same  place:  "I,  William  Archer  Cocke,  attorney- 
general  of  the  State  of  Florida,  and  as  such  one  of  the 
members  of  the  board  of  State  canvassers  of  the 
State  of  Florida,  do  certify  that,  by  the  authentic  re 
turns  of  the  votes  cast  in  the  several  counties  of  the 
State  of  Florida,  at  the  general  election  held  on  Tues 
day,  November  7,  1876,  said  returns  being  on  file  in  the 
office  of  the  secretary  of  State,  and  seen  and  considered 
by  me,  as  such  member  of  the  board  of  State  can 
vassers  of  the  State  of  Florida,  it  appears  and  is 
shown  that  Wilkinson  Call,  Jas.  E.  Yonge,  Robert  B. 
Hilton,  and  Robert  Bullock  were  chosen  the  four 
electors  of  President  and  Vice-President  of  the  United 
States;  and  I  do  further  certify  that  under  the  act  of 
the  legislature  of  the  State  of  Florida  establishing 
said  board  of  State  canvassers,  no  provision  has  been 
enacted,  nor  is  any  such  provision  contained  in  the 
statute  law  of  this  State,  whereby  the  result  shown 
and  appearing  by  said  returns  to  said  board  of  State 
canvassers  can  be  certified  to  the  executive  of  said 
State." 

Accompanying  this  certificate  are  the  jurats  of  the 
men  named  therein  as  electors,  wherein  they  swear 


48  The  Hayes-Tilden  Contest 

to  protect  the  Constitution  of  the  United  States,  etc., 
and  that  they  are  entitled  to  hold  office  under  the 
constitution  of  Florida,  and  that  they  will  well  and 
faithfully  perform  the  duties  of  electors;  and  their 
certificate,  in  the  regular  form,  casting  their  votes  as 
electors  for  Tilden  and  Hendricks;  and  following  this 
the  further  certificate :  "And  we  further  certify  that, 
having  met  and  convened  as  such  electors,  at  the  time 
and  place  designated  by  law,  we  did  notify  the  gov 
ernor  of  the  State  of  Florida,  the  executive  of  said  State, 
of  our  appointment  as  such  electors,  and  did  apply  to 
and  demand  of  him  to  cause  to  be  delivered  to  us  three 
lists  of  the  names  of  the  electors  of  the  said  State, 
according  to  law,  and  the  said  governor  did  refuse  to 
deliver  the  same  to  us."  The  date  is  the  same. 

Third.  Certificate  No.  3,  is  dated  January  29,  1877, 
and  is  made  by  Geo.  F.  Drew,  governor.  Governor 
Drew  had  succeeded  Governor  Stearns,  had  entered 
upon  the  duties  of  his  office  and  was  unquestionably 
recognized  as  the  rightful  executive.  He  certified  that, 
wHereas,  pursuant  to  an  act  of  the  legislature  of  Florida 
approved  Jan.  17,  1877,  a  canvass  of  the  returns  of  the 
election  of  November  7,  on  file  in  the  office  of  the 
secretary  of  State,  had  been  made  by  the  State  can 
vassing  board,  "according  to  the  laws  of  the  State 
and  the  interpretation  thereof  by  the  supreme  court," 
and  that  at  such  canvass  it  had  been  "duly  determined, 
declared,  and  certified,"  that  the  men  as  named  in  num 
ber  two,  the  Tilden  men,  had  been  duly,  as  shown  by 
said  returns,  elected  electors;  and,  whereas,  in  a  quo 
warranto  proceeding  wherein  the  Tilden  men  were 
relators  and  the  Hayes  men  respondents,  the  circuit 
court  of  Florida,  "after  full  consideration  of  the  law 


The  Certificate  49 

and  the  proofs  produced  on  behalf  of  the  parties  re 
spectively,  by  its  judgment  determined  that  said  relators 
were,  at  said  election,  in  fact  and  law,  elected  such 
electors  as  against  the  said  respondents  and  all  other 
persons : 

"Now,  therefore, 'and  also  in  pursuance  of  an  act  of 
the  legislature  entitled,  'An  act  to  declare  and  estab 
lish  the  appointment  by  the  State  of  Florida  of  electors 
of  President  and  Vice-President  of  the  United  States,' 
approved  January  26,  1877,"  the  governor  certified  the 
Tilden  men  the  electors  "chosen,  appointed,  and  de 
clared  as  aforesaid." 

Following  this  was  again  the  certificate  of  the  Tilden 
men,  wherein  they  recite  the  last  above  mentioned 
certificate,  set  out  their  action  on  December  6;  and  that, 
having  counted  their  votes  cast  as  electors  on  the  said 
6th  day  of  December,  it  was  seen  that  all  four  were 
for  Tilden  and  Hendricks.  This  certificate  was  dated 
January  26th,  1877. 

Then  immediately  follows  a  certified  copy  of  the 
act  of  the  Florida  legislature  approved  January  17, 
1877.  This  is  also  accompanied  by  the  official  certifi 
cate  of  the  canvass  of  the  State  board  as  made  on 
January  19,  1877,  pursuant  to  the  said  act  of  the  legis 
lature,  wherein  the  vote  is  shown  by  counties,  the  re 
turns  being  those  from  the  counties  and  on  file  in  the 
office  of  the  secretary  of  State,  and  it  is  certified  that  the 
Tilden  men  received : 

Call 24.437. 

Yonge 24.440. 

Hilton 24.437. 

Bullock 24.437. 


50  The  Hayes-Tilden  Contest 

and  the  Hayes  men : 

Humphries 24.349, 

Pearce 24.345, 

Long 24,344, 

Holden  24,350. 

Also  accompanying  this  certificate  is  the  further 
certificate  of  the  governor  that  these  certificates  of  the 
secretary  of  State  are  in  due  form  and  made  by  the 
proper  officer. 

The  last  paper  with  this  certificate  is  a  certified 
copy  of  the  act  of  the  legislature  approved  January  26, 
1877,  "to  declare  and  establish  the  appointment  by  the 
State  of  Florida  of  electors,"  the  Tilden  men  being 
therein  named  as"  such.2 

To  this  evidence  various  Senators  and  Representatives 
submitted  objections  as  follows: 

To  No.  i,  the  certificate  of  Governor  Stearns,  and 
the  one  on  which  the  Hayes  men  stood,  that  it  "was 
and  is  in  all  respects  untrue,  and  was  corruptly  pro 
cured  and  made  in  pursuance  of  a  conspiracy"  be 
tween  Governor  Stearns  and  the  Hayes  men;  and  that 
if  said  certificate  and  the  acts  of  the  Hayes  men  there 
under  had  ever  had  any  validity,  it  had  been  annulled 
and  completely  destroyed  by  the  above  mentioned  acts 
of  the  legislature  and  the  adjudications  of  the  Florida 
courts,  especially  the  judgment  in  the  quo  warranto, 
wherein  the  court  determined  that  upon  the  day  and 
date  the  Hayes  men  attempted  to  cast  the  electoral  vote 
of  the  State,  they  were  "mere  usurpers,  and  that  all 
and  singular  their  acts  and  doings  as  such  were  and 
are  illegal,  null,  and  void;"  and  that  said  court  had 
further  determined  that  the  Tilden  men  on  the  6th 

8  Proceedings,   11   to   28. 


The  Certificate  51 

day  of  December,  and  at  all  times  since,  were  the  duly 
appointed  electors  and  entitled  at  all  times  to  perform 
the  duties  as  such. 

To  No.  2  the  Republicans  objected  on  the  ground  that 
it  was  not  "authenticated  according  to  the  requirement 
of  the  Constitution  and  laws  of  the  United  States," 
so  as  to  entitle  the  votes  stated  therein  to  be  counted; 
and  that  there  was  with  it  "no  certificate  of  the  execu 
tive  authority  of  the  State  of  Florida  of  the  list  of  names 
of  said  electors,"  nor  any  "valid  certification  or  authenti 
cation  of  said  electors." 

To  Nos.  2  and  3  there  was  the  joint  objection  that 
the  Tilden  votes  could  not  be  counted  because  "by 
a  certificate  of  the  electoral  vote  of  the  State  of  Florida, 
in  all  respects  regular  and  valid  and  sufficient  under 
the  Constitution  and  laws  of  the  United  States,  and 
duly  authenticated  as  such  and  duly  transmitted  to 
and  received  by  and  opened  by  the  president  of  the 
Senate  in  the  presence  of  the  two  Houses  of  Congress," 
it  was  shown  that  the  Hayes  men  were  the  electors. 

To  No.  3  there  was  the  further  objection  on  the 
ground  that  Gov.  Drew  was  not  holding  the  office  of 
governor  at  the  time  the  electors  were  appointed 
nor  when  their  functions  as  electors  were  exercised; 
and  because  the  proceedings  as  recited  in  his  certificate 
"as  certifying  the  qualifications  of  the  persons  therein 
claiming  to  be  electors  are  ex  post  facto,  and  are  not 
competent  under  the  law  as  certifying  any  right  in  the 
said"  Tilden  men;  and,  last,  on  the  ground  that  "the 
said  proceedings  and  certificates  are  null  and  void 
of  effect  as  retro-active  proceedings." 

Art.  II.,  section  I,  of  the  Constitution,  authorizing 
electors,  provides  that  "no  Senator  or  Representative, 


52  The  Hayes-Tilden  Contest 

or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector."  The 
Democrats  alleged  that  on  December  3,  1872,  Humphries, 
one  of  the  Republican  claimants,  was  appointed  United 
States  shipping-commissioner  for  the  port  of  Pensa- 
cola.  This  is  an  office  of  trust  and  profit  under  the 
United  States.  The  Democrats  asserted  that  Hum 
phries  was  yet  holding  this  office  on  December  6,  the 
day  on  which  he  attempted  to  act  as  an  elector.  Upon 
this  ground  they  objected  to  the  vote  cast  by  him,  should 
it  be  decided  that  the  Republican  votes  were  to  be 
counted, — on  the  ground  that  he  could  not  be  consti 
tutionally  appointed  an  elector.3 

With  the  positions  of  both  sides  thus  plainly  defined 
in  the  objections  that  had  been  submitted  in  writing, 
this  record  and  these  objections  passed  for  the  time 
into  the  jurisdiction  of  the  Commission.  What  that 
jurisdiction  was  remained  to  be  discovered, — a  ques 
tion  no  less  difficult  than  was  that  concerning  a 
proper,  just,  and  legal  disposition  of  the  questions  raised 
upon  the  objections. 

Friday,  February  2,  the  Commission  entered  upon 
a  consideration  of  the  Florida  case.  This  tribunal, 
theretofore  unknown  to  the  American  Constitution,  the 
result  of  a  most  bitter  national  party  struggle, — the 
resort  of  a  coerced  Democracy, — had  before  it  a  case 
as  much  without  a  precedent  in  jurisprudence  or  admin 
istrative  procedure  as  was  the  Commission  without 
express  warrant  in  the  fundamental  charter.  Two  sets 
of  litigants  presented  themselves,  each  represented  by 
the  best  legal  talent  of  the  day,  and  each  bitterly  un 
compromising  in  the  intensity  with  which  it  insisted 

3Ib.   28. 


The  Certificate  53 

upon  the  right  of  its  claims.  The  Tilden  men  claimed 
that  on  December  6th,  1876,  having  been  duly  elected 
at  the  election  of  November  7,  and  having  been  so 
declared,  they  cast  for  the  Democrats  the  electoral  vote 
of  Florida;  while  the  Hayes  men  insisted  that  on  the 
same  day  of  December  they  had  cast  the  electoral  vote 
of  the  State,  having  been  duly  authorized,  for  the  Re 
publican  ticket.  How  should  the  Commission  deter 
mine  which,  if  either,  of  these  votes  should  be  counted? 
How  far  back  is  the  chain  of  the  electoral  title,  and 
by  what  kind  of  evidence,  was  the  Commission  to  pro 
ceed?  There  was  no  exact  precedent,  it  is  true;  but 
the  questions  involved  fundamental  principles  of  our 
government  and  legal  rules  that  were  plain  and 
axiomatic.  With  these  greater  lights  uncovered  it  re 
mained  to  the  majority  power  of  the  Commission  to 
answer  these  questions, — questions  which  affected  not 
alone  the  succession  to  the  Presidency,  but  which  in 
volved  definitions  of  the  nature  of  our  dual  government, 
and  which  might  become  precedents  by  which  to  measure 
the  rights  of  the  States  and  the  powers  of  the  Federal 
government  in  some  most  vital  matters. 

The  Commissioners,  not  entirely  to  the  satisfaction 
of  either  side,  determined  the  order  of  the  battle. 
Two  objectors,  members  of  Congress,  on  each  side, 
were  required  to  open  the  case  by  stating  the  ground 
upon  which  the  party  they  respectively  represented 
relied  for  supporting  its  contention. 
,  David  Dudley  Field,  of  New  York,  a  Republican  who 
had  supported  Hayes  at  the  polls  but  who  became  con 
vinced  of  the  right  of  Tilden's  case,  a  member  of  the 
House,  and  J.  Randolph  Tucker,  of  Virginia,  another 
member  of  the  House,  opened  the  case  for  the  Demo- 


54  The  Hayes-Tilden  Contest 

cratic  objectors.  Field  spoke  first.  He  began  by  call 
ing  attention  to  the  fact  that  the  majority  of  the  votes 
in  Florida  at  the  election  on  November  7,  1876,  had  been 
cast  for  the  men  who  claimed  the  right  to  cast  the 
electoral  vote  of  that  State  for  Tilden,  saying:  "Never 
theless,  a  certificate  comes  here  signed  by  the  then 
governor  of  the  State  certifying  that  the  Hayes  electors 
had  a  majority  of  the  votes.  By  what  sort  of  jugglery 
that  result  was  accomplished  I  now  take  it  upon  me 
to  explain."  4 

He  then  charged  fraud  on  the  part  of  certain  county 
canvassing  boards,  that  of  Baker  county  especially, 
resulting  in  a  return  for  the  Hayes  men,  and  quoted 
the  evidence  upon  which  his  charge  was  based,  and 
offered  it  in  the  event  the  Commission  should  decide 
to  go  behind  the  action  of  the  State  canvassing  board.5 
Passing  to  the  canvass  by  the  State  canvassing  board,  he 
charged  that  it  was  by  sustaining  the  gross  frauds  of 
the  county  board  of  Baker  county  that  the  State  board 
had  been  able  to  declare  in  favor  of  the  Hayes  electors. 
He  charged  that  the  State  board  knew  the  fraud  of  the 
county  board,  and  that  it  had  sustained  the  county 
fraud  through  a  confederacy  entered  into  by  the  Re 
publican  majority  of  the  State  board,  the  county  board, 
and  Governor  Stearns,  and  that  the  governor  upon  that 
fraud  had  issued  to  the  Hayes  men  the  objectionable 
certificate.  He  said  that,  should  the  Commission  decide 
that  the  action  of  the  State  board  was  open  to  inquiry, 
it  would  be  shown  that  the  second  canvass  made  by 
the  pro-Hayes  board,  made  under  a  mandamus  as  we 
shall  see,  as  to  the  Presidential  electors  "used  in  all  of 

*Ib.  35. 

«Ib.  30  and  37. 


The  Certiiicate  55 

its  falsehood,"  the  Baker  county  returns.  He  said 
that  these  charges  had  been  sustained  by  the  State  of 
Florida,  first,  in  a  mandamus  proceeding  against  the 
board  that  had  made  the  pro-Hayes  report,  in  which 
proceeding  the  supreme  court  of  the  State  held  that  the 
action  of  the  State  board  by  which  alone  the  Hayes 
men  could  claim  authority  had  been  determined  to  have 
been  an  usurpation;  second,  by  a  proceeding  in  the 
nature  of  a  quo  warranto,  begun  and  served  before  the 
Hayes  men  voted  as  electors,  as  were  the  mandamus 
and  injunction  begun  and  served  before  the  State 
board  had  rendered  its  pro-Hayes  rinding,  against  the 
men  themselves  who  claimed  to  be  the  electors  and 
who  voted  for  Hayes,  in  which  action  the  court  held 
that  the  attempt  by  the  Hayes  claimants  to  exercise  the 
functions  of  electors,  to  be  a  usurpation  and  their  action 
in  toto  and  ab  initio  null  and  void,  and  in  which  action 
it  was  alone  held  by  the  court  that  the  acts  by  which 
the  State  board  had  claimed  to  reach  a  pro-Hayes  result 
were  unlawful  and  invalid;  and,  third,  he  pointed  out 
that  this  charge  had  further  been  sustained  by  certain 
acts  of  the  legislature  of  Florida,  in  the  exercise 
of  her  right  of  appointment,  in  which  the  judgment  of 
the  court  had  been  ratified,  and  the  void  nature  of  the 
pro-Hayes  actions  affirmed. 

He  contended  that  these  acts  of  the  State,  subse 
quent  to  the  election,  had  settled  the  question  of  title 
as  between  the  Hayes  and  Tilden  claimants,  and  in  favor 
of  the  latter.  In  conclusion  he  asked : 

"Who  is  it  whose  acts  we  are  now  seeking  to  im 
peach?  It  is  the  then  governor  of  Florida,  Stearns; 
*  *  *  Stearns,  the  man  who  controlled  the  State 


56  The  Hayes-Tilden  Contest 

canvassing  board  sitting  to  certify  whether  he  and  they 
were  to  continue  in  office. 

"Is  it  a  true  proposition  of  law,"  he  asked,  "that  you 
cannot  inquire  whether  he  has  acted  fraudulently?  If 
it  be  true  that  the  certificate  of  the  governor  is  con 
clusive  evidence  that  these  persons  were  elected,  then 
it  follows  that  the  certificate  would  be  sufficient  if 
there  were  no  election  at  all.  *  *  * 

"Here  is  the  certificate,"  he  concludes ;  "one  feels 
reluctant  to  touch  it.  Hold  it  up  to  the  light.  It  is 
black  with  crime.  Pass  it  round ;  let  every  eye  see  it ; 
and  then  tell  me  whether  it  is  fit  to  bestow  power  and 
create  dignity  against  the  will  of  the  people.  One  of  the 
greatest  poets  of  the  palmy  days  of  English  literature, 
writing  of  the  coming  of  our  Savior  has  said : 

— And  ancient   fraud  shall   fail, 
Returning   Justice    lift   aloft    her    scale. 

Ancient  fraud  !  Was  there  ever  fraud  like  this  ?  In  previ 
ous  ages  fraud  has  succeeded  only  because  it  has  been 
supported  by  the  sword,  and  protesting  peoples  have 
been  powerless  before  armed  battalions.  Never  yet  in 
the  history  of  the  world  has  a  fraud  succeeded  against 
the  conscience  and  will  of  a  self-governing  people.  If 
it  succeeds  now,  let  us  hang  our  heads  for  shame;  let 
us  take  down  from  the  dome  of  this  Capitol  the  statue 
which  every  morning  faces  the  coming  light ;  let  us 
clothe  ourselves  with  sackcloth  and  sit  in  ashes  for 
ever."8 

It  seems  that  the  fair  order  of  procedure  would  have 
been  to  have  had  a  Republican  representative  state  the 
case  for  that  side,  but  Representative  Tucker  was  re- 

«Ib.  44,   45. 


The  Certificate  57 

quired  to  follow,  thus  giving  the  Republican  objectors 
an  opportunity  to  answer  both  the  Democratic  ob 
jectors  while  the  latter  had  no  opportunity  to  reply. 
He  called  attention  to  the  objections  filed  against  the 
Hayes  claimants,  which  alleged  that  the  purported  votes 
of  the  Hayes  men  "did  not  truly  represent  any  votes 
or  lawful  acts,"  and,  like  the  Stearns  certificate,  "were 
made  out  and  executed  in  pursuance  of  the  same  fraud 
ulent  conspiracy."  Succinctly  he  referred  to  the  sixth 
objection  filed  against  the  Hayes  votes,  in  which  objec 
tion  is  set  out  "the  quo  warranto  proceeding  initiated 
prior  to  the  votes  given  for  Hayes  and  Wheeler  by 
these  pretended  electors  on  the  6th  day  of  December," 
which  proceeding  resulted  in  a  judgment  which  de 
clared  the  said  acts  of  the  Hayes  men  utterly  null  and 
void,  and  "that  they  were  usurpers  and  pretenders  to 
said  office." 

"We  object  to  these  votes  being  counted,"  he  said, 
"because  we  say  that  these  men  were  not  elected  ac 
cording  to  the  law  of  Florida,  and  not  being  so  elected 
can  have  no  title  to  the  office ;  *  *  *  Is  the  power 
of  a  returning  board,  tainted  with  fraud,  based  upon 
lawlessness,  to  conclude  the  judgment  of  the  American 
people  and  put  a  usurper  in  the  seat  of  Washington? 
That  is  the  question.  *  *  * 

"I  apprehend  that  the  powers  of  the  two  Houses  of 
Congress  and  of  this  tribunal  as  their  substitute  are 
not  less  in  this  inquiry  than  the  powers  of  a  court  upon 
a  quo  warranto  proceeding.  We  are  now  standing  as 
the  guards  to  the  entrance  of  the  executive  department, 
and  we  are  to  let  no  man  pass  that  has  not  the  pass 
word  of  the  people  of  the  United  States.  We  have  a 


58  The  Hayes-Tilden  Contest 

right  to  question  his  title,  and  if  he  has  no  title  never 
to  permit  him  to  enter." 

Those  who  followed  Tucker  made  capital  to  some 
extent  out  of  his  statement  that  the  powers  of  the  Com 
mission  were  not  less  than  the  powers  of  a  court  upon 
a  quo  warranto  proceeding.  But  there  is  nothing  what 
ever  inconsistent  in  that  position.  A  quo  warranto  pro 
ceeding  inquires  for  the  title,  whether  there  ever  were 
any  title,  in  the  claimant.  That  is  exactly  what  the  Com 
mission  did.  The  Democrats  insisted  that  one  thing 
established  title,  gave  valid  credentials,  while  the  Re 
publicans  stood  upon  another  ground  and  that  which  was 
sustained  by  the  majority.  They  differed  as  to  what 
was  the  proof  of  the  title.  Watch  Tucker's  argument: 

"Who  appoint  electors?  'Each  State  shall  appoint.' 
What  is  the  meaning  of  that?  I  apprehend  that  the 
word  'State'  in  the  Constitution  has  three  or  four  mean 
ings,  one  indicating  the  territory  in  which  the  popula 
tion  lives;  another  the  people  themselves  as  an  organic 
body-politic, — and  another  the  State  government.  In 
this  particular  case  I  apprehend  that  it  means  the  State 
as  a  body-politic,  as  an  organic  society,  not  its  govern 
ment,  because  the  next  sentence  says  that  each  State 
shall  appoint  'in  such  manner'  as  its  'legislature  may 
direct.'  There  you  have  the  functional  power  of  elec 
tion  in  the  State  as  a  body-politic;  the  manner  of  the 
election  to  be  prescribed  and  directed  by  its  legislature. 
The  law-making  power  of  the  State  directs  the  manner ; 
the  substantial  power  is  in  the  State.  *  *  *  In  every 
appointment  or  election  two  elements  enter;  first,  the 
exercise  of  the  elective  function ;  second,  the  exercise 
of  the  determining  function.  *  *  *  I  therefore  say 
that  in  Florida  the  elective  function  was  in  the  body 


The  Certificate  59 

of  the  people  of  the  State;  whoever  the  body  of  the 
people  of  the  State  elected  to  be  its  electors  were  its 
electors  and  had  title  to  the  office,  according  to  the 
language  of  the  Federal  Constitution,  the  authority  I 
have  read.  The  question  of  whether  they  should  have 
been  determined  to  have  been  elected  by  the  board  of 
canvassers  is  an  entirely  different  question.  If  the 
board  of  canvassers,  either  contrary  to  law  or  tran 
scending  their  legal  authority,  fraudulently  counted  in 
as  elected  those  who  were  not  elected  by  the  people, 
their  act  was  void.  *  *  *  The  power  of  determin 
ation  can  never  be  valid  where  it  usurps  the  elective 
function  which  is  vested  by  the  law  in  any  other  body." 

Notice,  as  he  proceeds,  where  he  places  the  power  to 
determine  finally  the  validity  of  the  action  of  the  State 
canvassing  board: 

He  insisted  that  the  laws  of  Florida  made  the  State 
judicial  power  "the  ultimate  determinant  authority"  in 
a  review  of  the  acts  of  the  State  canvassing  or  return 
ing  board ;  and  that  Congress  must  "give  force  and 
validity  to  the  action  of  the  returning  board  as  re 
viewed  by  the  judicial  authority  and  as  adjudged  by 
the  judicial  authority  of  the  State,"  because  "the  judi 
cial  procedure  in  that  case  becomes  a  part  of  the  de 
terminant  authority  in  the  election  provided  by  the 
State,  and  therefore  you  say  that  a  man  is  elected  in 
the  manner  prescribed  by  the  State  law,  when  he  is 
determined  to  be  elected  by  the  State  law,  and  that 
determination  is  revised  and  adjudged  before  the  State 
judiciary.  *  *  *  Therefore  I  say  to  gentlemen  here, 
if  they  want  to  stand  upon  the  ground  of  not  being 
permitted  to  go  behind  State  authority  in  these  mat 
ters,  they  must  take  the  whole  of  the  State  authority. 


60  The  Hayes-Tilden  Contest 

*  *  *  Shall  you  hold  the  commission  which  the 
State  of  Florida  has  declared  to  be  invalid,  to  be  valid, 
in  order  to  stifle  the  elective  power  of  the  people  and 
give  power  to  the  determinant  functions  of  the  oli 
garchy?  That  is  the  question."7 

Tucker  having  concluded  for  the  Democratic  objec 
tors,  the  Commission  took  a  recess  until  three  in  the 
afternoon  of  the  same  day.  On  convening,  Shellabarger 
by  request  laid  before  the  Commission  "the  Senate  re 
port  upon  Florida  containing  the  law  of  Florida  and 
other  matters  pertinent  to  this  discussion,"  which  mat 
ter  was  taken  as  part  of  the  Republican  statement. 

John  A.  Kasson,  a  representative  from  Iowa,  opened 
the  case  for  the  Republican  objectors.  He  confined 
his  arguments  to  the  objections  made  to  the  Stearns 
certificate,  alleging  that  in  reaching  a  pro-Hayes  result 
the  State  officers  had  been  guilty  of  no  fraud;  and  that, 
so  far  as  fraud  at  the  election  was  concerned,  when 
the  Democrats  pointed  to  a  Republican  fraud  in  one 
county,  the  Republicans  would  invite  them  to  a  Dem 
ocratic  fraud  in  another !  And  as  an  instance  he  said 
go  to  "Alachua  county  and  find  at  one  precinct  a  rail 
road  train  of  non-resident  passengers  getting  off  on 
their  passage  through  and  voting"  the  Democratic  ticket. 

He  argued  that  the  power  of  the  Commission  ex 
tended  no  further  than  "to  do  the  ministerial  act  of 
counting  the  votes  in  the  stead  of  the  president  of  the 
Senate."  8  He  said  the  power  "to  count"  carried  a  "nar 
row  circuit  of  discretion"  and  only  broad  enough  to 
ascertain  whether  the  papers  before  the  Commission  as 
certificates  were  genuine,  not  counterfeit,  duly  verified 

*Ib.  46  to  51. 
•Ib.  55,  58. 


The  Certificate  61 

by  State  authority,  and  as  required  by  the  Constitution 
and  laws.  "It  is  broad  enough  to  ascertain  whether  the 
electoral  college  has  complied  with  the  law.  This  is  a 
ministerial  examination,"  he  insisted,  and  that  the  Com 
mission  must  determine  from  the  face  of  the  certificates 
offered  by  the  two  sets  of  claimants  "which  is  the  true 
certificate,  more  in  compliance  with  law,  and  bearing 
upon  its  face  greater  evidence  of  its  authenticity."  In 
determining  "which  is  the  authentic  certificate  and  the 
authenticated  vote,"  his  position  was  that  the  answer 
given  by  the  State  canvassing  board  as  first  made  by 
it  must  be  taken  as  final  and  conclusive.  "There  is," 
he  said,  "necessity  in  public  affairs,  and,  in  the  very 
organization  of  society  and  of  political  communities, 
an  absolute  necessity  to  have  .some  final  jurisdiction. 
There  must  be  somewhere  an  authority  by  which  we 
stand,  even  if  it  be  impeached  by  charges  of  fraud. 
Where  is  that  authority?  Is  it  here?  Is  it  in  the  gov 
ernor?  Is  it  in  the  canvassing  boards?  Is  it  in  the 
State  legislature?  Is  it  in  the  State  judiciary?  Where 
is  it?" 

He  answered  these  questions  by  finding  that  the  final 
jurisdiction  was  by  the  laws  of  Florida  reposed  not  in 
the  judiciary,  not  in  the  executive,  not  in  the  legisla 
ture.  His  position  differed  from  the  Democratic  con 
tention  as  to  the  interpretation  to  be  given  the  local 
laws  of  Florida  and  as  to  the  forum  from  which  the 
final  and  accepted  interpretation  should  eminate. 

George  W.  McCrary,  a  representative  from  Iowa,  fol 
lowed,  closing  for  the  Republican  objectors.  At  once 
he  addressed  himself  to  the  question,  "How  far  can 
this  Commission  go  in  this  inquiry?" 


62  The  Hayes-Tilden  Contest 

Answering  he  said :  "Gentlemen  have  argued,  and 
this  whole  case  rests  upon  the  argument,  that  the  ap 
pointment  of  the  electors  is  by  the  votes  of  the  people 
at  the  polls ;  and  that,  therefore,  the  Commission  must 
inquire  how  the  people  voted  at  the  polls  in  order  that 
Congress  may  decide  who  have  been  appointed  elec 
tors." 

The  most  casual  reader  will  readily  see  the  distortion 
thus  given  the  Democratic  contention.  One  can  hardly 
see  why  an  honest  man  should  have  made  such  a  state 
ment  before  so  learned  a  body  who  had  just  listened 
to  the  opening  statements  of  the  other  side,  other  than 
that  the  speaker  must  have  felt  the  weight  of  the  logic 
of  Tucker  and  the  eloquence  of  Field,  and  blundered  in 
groping  for  an  avenue  of  escape. 

McCrary  continued :  "But,  may  it  please  the  Com 
mission,  the  appointment  of  the  electors  is  not  by  the 
vote  of  the  people  at  the  polls.  That  may  possibly  be 
one  of  the  steps  required  by  the  laws  of  the  State,  but 
the  appointment  of  the  electors  is  by  the  vote  of  the 
people  cast  at  the  polls,  by  the  action  of  such  tribunals 
as  the  State  laws  have  created,  canvassing,  determin 
ing,  and  ascertaining  the  result  of  that  vote,  and  by 
the  issuing  in  pursuance  of  that  canvass  of  the  evi 
dence  showing  the  election  of  the  electors.  The  State 
acts  through  its  officials,  through  its  constituted  au 
thorities,  and  the  State  declares  who  has  been  appointed. 
Therefore,  when  the  Constitution  says  that  we  shall 
inquire  who  have  been  appointed  electors  by  the  State 
in  accordance  with  the  laws  of  the  State  or  as  directed 
by  the  legislature  of  the  State,  we  are  simply  to  inquire 
what  persons  have  been  declared  to  be  electors  by  the 


The  Certificate  63 

tribunal  and  the  authority  which  the  State  law  has 
created  for  that  purpose."  9 

Thus  the  Republican  objectors  planted  their  strong 
hold  upon  the  position  that  the  ascertainment  and  de 
claration  "by  the  tribunal  and  authority  which  the 
State  law  has  created  for  that  purpose,"  was  final, 
whether  fraudulent,  mistaken  or  otherwise:  and  differ 
ing  from  the  Democrats,  a  difference  wide  and  vital, 
in  the  designation  of  what  were  "the  tribunal  and 
authority  which  the  State  has  created"  "for  the  purpose 
of  ascertaining  and  declaring  the  result  of  the  popular 
election."  The  Republicans  stopped  short  of  the  State 
courts  as  one  "of  such  tribunals  as  the  State  laws  have 
created"  for  such  purposes.  By  stopping  at  the  State 
canvassing  board  the  Republicans  dismissed  the  pro 
ceeding  in  quo  warranto,  and  rid  themselves  of  the 
construction  given  the  State  law  by  the  supreme  court 
in  the  mandamus  proceeding  against  the  State  canvass 
ing  board  and  the  injunction  served  upon  it  before  the 
pro-Hayes  finding,  and  to  reach  which  finding  the  two 
Republicans  of  the  State  board  disobeyed  the  injunc 
tion  and  were  afterwards  held  in  contempt  of  court. 
While  the  Democrats  contended  that  the  Commission 
should  "take  the  whole  of  the  State  authority;"  that 
the  judicial  procedure  "becomes  a  part  of  the  deter 
minant  authority  in  the  election  provided  by  the  State, 
and  therefore  you  say  that  a  man  is  elected  in  the  man 
ner  prescribed  by  the  State  law,  when  he  is  determined 
to  be  elected  by  the  State  law,  and  that  determination 
is  reviewed  [when,  of  course,  it  has  been  called  in 

9Ib.  66. 


64  The  Hayes-Tilden  Contest 

question]  and  adjudicated  upon  by  the  State  judici 
ary."  10 

McCrary  argued  that  the  Democrats  were  wrong  in 
contending  that  the  judgment,  rendered  after  the  day 
on  which  the  electors  voted,  in  a  quo  warranto  pro 
ceeding  begun  and  served  upon  the  defendants  before 
the  vote,  but  after  they  had  assumed  the  duties  of  the 
office  they  claimed  the  right  to  fill,  "relates  back  to  the 
date  of  the  filing  of  the  petition  and  vacates  and 
vitiates  everything  that  was  done  in  the  meantime. 
That,  I  think,"  he  said,  "is  not  the  law."  His  reason 
for  his  conclusion  was  that  "at  the  time  of  the  judg 
ment  every  function  of  the  office  of  Presidential  elector 
had  been  exercised.  The  office  had  ceased  to  be.  The 
officer  had  ceased  to  be  and  was  functus  officio."^ 

If  he  were  never  the  officer,  what?  retorted  the  Demo 
crats, — but  the  answer  will  be  fully  discussed  in  a 
subsequent  chapter,  where  the  grounds  will  be  examined 
upon  which  the  Democrats  contended  that  what  the 
Republicans  called  credentials  were  not  such,  and  that 
therefore  the  Hayes  men  did  not,  as  McCrary  insisted 
his  clients  had  done,  "discharge  every  function  that 
belonged  to  them  under  the  Constitution  and  laws  on 
the  6th  day  of  December,"  because  on  that  day  no 
electoral  function  belonged  to  the  men  thus  attempting 
to  cast  the  Florida  electoral  vote  for  Hayes.  This 
fact,  they  said,  was  established  by  the  proceedings 
in  the  Florida  courts,  especially  the  quo  ivarranto,  an 
action  incorporated  by  the  legislature  of  the  State 
into  her  judicial  procedure  from  the  common  law  of 
England,  and  that  the  prime  purpose  of  such  an  action 

"Ib.  48. 
"Ib.   66,   67. 


The  Certificate  65 

was  to  determine  the  nature  and  validity  of  credentials 
in  cases  of  this  very  kind ;  and  that  for  this  reason, 
no  limit  having  been  fixed  by  any  Federal  provision 
beyond  which  such  cases  might  be  tried,  the  adjudication 
was  part  of  the  appointment,  the  final  credential  proving 
the  will  of  the  State  in  its  act  of  appointment  of  electors. 


IV. 

The  Battle  Between  Counsel. 

THE  objectors  having  concluded  their  arguments, 
the  president  of  the  Commission  inquired  of 
the  Democratic  objectors  whether  they  pro 
posed  before  argument  of  counsel  to  offer 
evidence.  Representatives  Field  and  Kasson  each  en 
deavored  to  answer,  but  the  president  and  Commissioner 
Edmunds  interrupted,  the  latter  submitting  "that  the 
objectors  have  exhausted  their  functions,  and  the  rest 
of  the  case  belongs  to  counsel."  Whereupon  Merrick, 
at  the  request  of  O'Conor,  of  counsel  for  the  Democrats, 
stated  that  they  expected  to  offer  evidence  prior  to 
argument  by  counsel,  continuing:  "We  have  been  under 
the  impression  that  the  evidence  was  already  before 
the  Commission,  without  any  necessity  for  a  further 
offer  on  our  part."  Commissioner  Miller  promptly 
asserted  that  he  did  not  understand  that  any  evidence 
had  been  admitted  in  the  case,  and  suggested  that  by 
the  next  day  counsel  who  expected  to  offer  evidence 
prepare  a  brief  synopsis  of  it.  Then  Evarts  for  the 
Republicans  declared  that  they  had  "no  evidence  to 
offer,  unless  there  should  be  a  determination  to  admit 
evidence  inquiring  into  facts,  and  evidence  should  be 
introduced  against  us  which  we  should  then  need  to 
meet." 

After  some  further  immaterial  talk  the  Commission 
adjourned    to    meet    the    following    day.      Having    con 
vened   pursuant   to   adjournment,    Charles    O'Conor   of 
New  York,  Jeremiah  S.  Black  of  Pennsylvania,  Richard 
66 


The  Legal  Battle  67 

T.  Merrick  of  Washington,  Ashbel  Green  of  New  Jer 
sey,  and  William  C.  Whitney  of  New  York,  appeared 
in  opposition  to  the  Stearns  certificate ;  and  William 
M.  Evarts  of  New  York,  E.  W.  Stoughton  of  New 
York,  Stanley  Matthews  of  Ohio,  and  Samuel  Shella- 
barger  of  Ohio  appeared  in  opposition  to  certificates 
numbers  two  and  three,  the  credentials  upon  which 
the  Tilden  men  relied. 

The  president  stated  that  under  the  rule  two  counsel 
on  a  side  would  be  heard,  and  suggested  that  the  Demo 
cratic  counsel  "should  make  their  offers  of  proof  in  a 
concise,  well-arranged  classified  form;"  and  that  the 
Republican  counsel  would  then  make  "their  provisional 
offers  of  proof  in  case  there  shall  be  a  decision  that 
proofs  are  admissible."  But  the  proposition  startled 
Evarts;  he  did  not  propose  thus  to  show  his  hand;  he 
was  naturally  quite  willing  to  see  what  his  enemy  held, 
but  his  own  forces  he  preferred  to  hold  in  reserve  and 
under  cover.  Commissioner  Edmunds  came  to  his  sup 
port,  saying:  "I  do  not  think  it  is  understood,  Mr. 
Evarts,  certainly  it  is  not  by  myself,  that  supposing  you 
object  to  the  proof  offered  by  Mr.  O'Conor  you  are 
necessarily  called  upon  at  the  same  time  to  state  what 
you  expect  to  prove  in  reply  if  his  proofs  shall  be  re 
ceived.  *  *  *  You  will  not  be  called  upon  to  offer 
proofs  on  your  own  side,  so  far  as  I  understand,  be 
cause  it  may  not  be  necessary."  1 

O'Conor  took  grave  exceptions  to  the  proposed  pro 
cedure  indicated  by  Edmunds,  pointing  out  that  upon 
the  question  of  the  admissibility  of  the  evidence  it 
would  be  necessary  to  argue  the  whole  case,  submitting 
that  "all  the  needful  evidence  should  come  in  subject 

1  Proceedings,    72-6. 


The  Hayes-Tilden  Contest 


to  such  questions  as  to  its  competency  and  its  effect 
as  may  exist,  for  the  reason  that  they  necessarily  in 
corporate  themselves  with  the  main  question  that  you 
have  finally  to  decide."  But  the  president  stopped  him 
and  required  him  to  state  what  he  proposed  to  offer 
in  evidence.  He  then,  having  been  forced  to  prepare 
it  hurriedly,  read  a  statement  of  what  the  Democrats 
regarded  "as  desirable  matter  in  the  nature  of  evidence 
to  be  laid  before  this  Commission — as  distinct,  and  as 
succinct,  and  as  brief,  and  as  explanatory  and  intel 
ligible  a  statement  as,  by  the  utmost  effort,  I  could  pos 
sibly  make,"  he  explained,  as  follows : 

"First.  On  December  6,  1876,  being  the  regular  law 
day,  both  the  Tilden  and  Hayes  electors  respectively 
met  and  cast  their  votes,  and  transmitted  the  same  to 
the  seat  of  government.  Every  form  prescribed  by  the 
Constitution,  or  by  any  law  bearing  on  the  subject, 
was  equally  complied  with  by  each  of  the  rival  electoral 
colleges,  unless  there  be  a  difference  between  them  in 
this  :  The  certified  lists  provided  for  in  section  136  of 
the  Revised  Statutes  were,  as  to  the  Tilden  electors, 
certified  by  the  attorney-general;  and  were,  as  to  the 
Hayes  electors,  certified  by  Mr.  Stearns,  then  governor. 
All  this  appears  of  record,  and  no  additional  evidence 
is  needed  in  respect  to  any  part  of  it. 

"Secondly.  A  quo  warranto  was  commenced  against 
the  Hayes  electors  in  the  proper  court  of  Florida  on 
the  6th  day  of  December,  1876,  before  they  had  cast 
their  votes,  which  eventuated  in  a  judgment  against  them 
on  the  25th  of  January,  1877.  It  also  determined  that 
the  Tilden  electors  were  duly  appointed.  The  validity 
and  effect  of  this  judgment  is  determinable  by  the 


The  Legal  Battle  69 

record ;  and  no  extrinsic  evidence  seems  to  be  desirable 
on  either  side,  unless  it  be  thought  (first)  that  the 
Tilden  electors  should  give  some  supplemental  proof 
of  the  precise  fact  that  the  writ  of  quo  ivarranto  was 
served  before  the  Hayes  electors  cast  their  votes,  or 
(second)  unless  it  be  desired  on  the  other  side  to  show 
the  entry  and  pendency  of  an  appeal  from  the  judgment 
in  the  quo  warranto.  [However,  the  appeal  was  settled 
in  favor  of  the  Tilden  men  and  known  to  the  Commis 
sion  before  its  final  vote.] 

"Thirdly.  To  show  what  is  the  common  law  of 
Florida  and  also  the  true  construction  of  the  Florida 
statutes,  the  Tilden  electors  desire  to  place  before  the 
Commission  the  record  of  a  judgment  in  the  supreme 
court  of  that  State  on  a  mandamus  prosecuted  on  the 
relation  of  Mr.  Drew,  the  present  governor  of  that 
State,  by  force  of  which  Mr.  Stearns  was  ousted  and 
Mr.  Drew  was  admitted  as  governor.  This  judgment, 
together  with  the  court's  opinion,  is  matter  of  record, 
and  they  require  no  other  proof;  nor  is  there  any 
technical  rule  as  to  the  manner  in  which  this  Commission 
may  inform  itself  concerning  the  law  of  Florida. 

"Fourthly.  The  legislation  of  Florida  subsequently  to 
December  6,  1876,  authorizing  a  new  canvass  of  the 
electoral  vote,  and  the  fact  of  such  new  canvass,  the 
casting  anew  of  the  electoral  votes,  and  the  due  formal 
transmission  thereof  to  the  seat  of  government,  in  per 
fect  conformity  to  the  Constitution  and  laws,  except 
that  they  were  subsequent  in  point  of  time  to  Decem 
ber  6,  1876,  are  all  matters  of  record  and  already  regu 
larly  before  the  Commission. 

"Fifthly.    The  only  matters  which  the  Tilden  electors 


70  The  Hayes-Tilden  Contest 

desire  to  lay  before  the  Commission  by  evidence  actually 
extrinsic  will  now  be  stated. 

"I.  The  board  of  State  canvassers,  acting  on  certain 
erroneous  views  when  making  their  canvass,  by  which 
the  Hayes  electors  appeared  to  be  chosen,  rejected 
wholly  the  returns  from  the  county  of  Manatee  and 
part  of  the  returns  from  each  of  the  following  counties, 
to-wit:  Hamilton,  Jackson,  and  Monroe. 

"I  trust  I  have  omitted  none,  but  I  have  had  no  con 
sultation. 

"In  so  doing  the  said  State  board  acted  without  jur 
isdiction,  as  the  circuit  and  supreme  courts  in  Florida 
decided.  It  was  by  overruling  and  setting  aside  as  not 
warranted  by  law  these  rejections,  that  the  courts  of 
Florida  reached  their  respective  conclusions  that  Mr. 
Drew  was  elected  governor,  that  the  Hayes  electors 
were  usurpers,  and  that  the  Tilden  electors  were  duly 
chosen.  No  evidence  that  in  any  view  could  be  called 
extrinsic  is  believed  to  be  needful  in  order  to  establish 
the  conclusions  relied  upon  by  the  Tilden  electors  ex 
cept  duly  authenticated  copies  of  the  State  canvass,  that 
is  the  erroneous  canvass  as  we  consider  it,  and  of  the 
returns  from  the  above  named  three  counties,  one 
wholly  and  the  others  in  part  rejected  by  the  State 
canvassers. 

"II.  Evidence  that  Mr.  Humphries,  a  Hayes  elector, 
held  office  under  the  United  States." 

Mr.  Evarts  for  the  Republicans  objected  to  this  "evi 
dence  now  offered,"  as  he  expressed  it.  Whereupon 
Mr.  Black,  for  the  Democrats,  said:  "We  insist  that 
the  whole  of  the  evidence,  including  this  mentioned  by 
Mr.  O'Conor  in  this  paper  of  his,  has  been  given 
already,  and  is  a  part  of  the  record.  A  question  arose 


The  Legal  Battle  71 

before  the  two  Houses  of  Congress  whether  certain 
votes  offered  for  President  and  Vice-President  ought 
to  be  counted  or  not.  Whether  they  ought  or  not  de 
pended  upon  the  question  whether  they  were  votes  or 
papers  falsely  fabricated.  Not  with  any  purpose  of 
going  behind  the  appointment  of  the  electors,  but  for 
the  purpose  of  ascertaining  what  electors  had  been 
appointed,  who  were  the  true  agents  of  the  State  in 
casting  its  vote,  the  two  Houses  proposed  to  use  their 
verifying  power.  Their  purpose  was  not  to  entertain  an 
appeal  from  the  decision  of  the  State,  but  to  ascertain 
what  that  decision  was.  This  involved  a  question  of 
fact.  It  was  absolutely  necessary  that  the  conscience 
of  the  two  Houses  should  be  informed  concerning  the 
truth  of  the  case  which  they  were  to  decide,  and  ac 
cordingly  they  took  a  perfectly  legitimate  and  proper 
mode  of  ascertaining  it.  They  sent  their  committees 
and  had  evidence  taken.  These  committees  collected 
the  documents,  put  the  whole  thing  into  a  proper  form, 
and  then  came  back  and  offered  it  to  the  two  Houses, 
by  whom  it  was  received  and  made  part  of  the  record 
of  this  case.  And  when  you  were  appointed  as  a  sub 
stitute  for  them  xand  became  the  keepers  of  their  con 
science,  they  required  you  to  tell  them  what  they 
ought  to  do  and  to  make  the  decision  which  upon  the 
evidence  that  was  before  them  they  ought  to  make. 
That  evidence,  I  say,  was  put  in,  and  the  portion  of 
it  which  was  taken  by  committees  of  the  House  of 
Representatives  was  laid  before  that  House  after  a 
fierce  struggle  and  the  filibustering  of  half  a  night  to 
keep  it  out.  The  president  of  the  Senate,  the  president 
of  the  two  bodies,  handed  this  evidence,  all  of  it,  over 


72  The  Hayes-Tilden  Contest 

in  bulk  to  be  used  here  by  this  Commission.  You  have 
seen  it  *  *  *" 

On  motion  of  Judge  Miller  it  was  decided  that  counsel 
be  allowed  two  hours  on  each  side  "to  discuss  the  ques 
tion  raised  by  Mr.  Evarts'  objection  to  testimony,  as 
to  whether  any  other  testimony  will  be  considered  by 
this  Commission  than  that  which  was  laid  before  the 
two  Houses  by  the  president  of  the  Senate,  and,  if 
so,  what  evidence  can  properly  be  considered ;  and  also 
the  question  what  is  the  evidence  now  before  the  Com 
mission."  z 

An  amendment  proposed  by  Judge  Field  was  lost. 
His  proposition  was  that  counsel  be  heard  "on  the 
effect  of  the  matters  laid  before  the  two  Houses  by  the 
president  of  the  Senate  and  of  the  offer  of  testimony 
made  by  Mr.  O'Conor  and  objected  to  by  Mr.  Evarts." 
The  vote  upon  this  and  the  motion  submitted  by  Judge 
Miller  is  not  reported. 

Mr.  Merrick  of  Washington  made  the  opening  argu 
ment  of  counsel  for  the  Democrats.  He  first  dis 
cussed  the  powers  of  the  Commission.  He  asserted 
that  the  Commission,  having  the  power  for  such  pur 
poses  possessed  by  the  two  Houses  acting  separately 
or  together,  as  the  law  provided,  might  investigate  the 
truth  of  the  governor's  certificate,  and  ascertain  which 
are  the  votes  cast  by  the  men  bona  fide  chosen  or 
appointed  by  the  States  as  electors.  "Having  ascer 
tained  what  are  the  votes,"  he  said,"you  count  those 
votes,  throwing  aside  whatever  ballots  you  may  find 
that  are  not  votes.  *  *  *  We  therefore  submit  that 
any  legitimate  evidence  going  to  determine  what  are  the 
true  votes  cast  by  the  electors  duly  appointed  by  the 
»Ib.  78,  82,  85. 


The  Legal  Battle  73 

State  is  proper  and  competent  evidence  before  this 
tribunal." 

As  an  important  precedent  for  contending  that,  not 
withstanding  the  day  had  passed  upon  which  electors 
were  by  law  directed  to  vote,  the  Federal  counting  power 
could  by  evidence  inquire  whether  those  claiming  to 
vote  had  been  by  the  /aw  of  the  State  legally  chosen, 
Merrick  cited  the  evidence  and  the  report  of  the  com 
mittee  sent  out  to  learn  the  facts  concerning  the  men 
who  claimed  to  be  the  electors  of  Louisiana  prior  to 
the  count  of  1873.  That  Republican  committee,  of  which 
Senator  Morton,  one  of  the  Commission,  was  chair 
man,  went  behind  the  returns  of  the  State  canvassing 
board  and  inquired  whether  it  had  acted  pursuant  to 
the  requirements  of  the  State  law.  Reporting  Feb. 
10,  1873,  this  committee  declared:  "We  find  that  the 
official  returns  of  the  election  of  the  electors,  from  the 
various  parishes  of  Louisiana,  had  never  been  counted 
by  anybody  having  authority  to  count  them."  3  Having 
separately  acted  upon  this  report  and  the  accompanying 
evidence,  each  House — in  the  Senate  upon  the  motion 
of  Carpenter  of  Wisconsin  and  in  the  House  upon 
the  motion  of  James  A.  Garfield  of  Ohio — by  large 
majorities  refused  to  count  the  electoral  vote  of 
Louisiana. 

Florida  presented  a  much  stronger  claim  for  the 
rejection  of  the  Hayes  electoral  votes.  Said  Mr. 
Merrick : 

"But,  may  it  please  your  honors,  in  the  case  of  the 
State  of  Florida  we  shall  not  ask  for  evidence  going 
behind  the  certificate.  The  case  presents  itself  to  the 
court  in  a  peculiar  aspect.  The  evidence  which  we 

•''Cong.   Globe,  pt.   2,    1218:   42   Cong.,   3d  sess. 


74  The  Hayes-Tilden  Contest 

shall  offer  and  which  we  claim  to  be  admissible  as  to 
that  State,  is  evidence  furnished  by  the  State  herself 
as  indicated  in  the  proposition  read  by  the  distinguished 
gentleman  with  whom  I  have  the  honor  to  be  asso 
ciated,  Mr.  O'Conor."  He  then  pointed  out  as  had 
O'Conor  that  the  State,  by  her  quo  warranto,  her 
mandamus,  her  legislature,  and  through  her  executive, 
had  ascertained  that  Governor  Stearns'  certificate  was 
either  given  in  mistake  or  fraud,  and  "that  the  electors 
to  whose  votes  we  object,  were  not  the  duly  appointed 
electors  of  Florida;  and,  through  all  her  departments  of 
government,  Florida  therefore  comes  to  the  United 
States  Congress  and  begs  that  you  (for  you  now 
exercise  that  power  and  it  is  vested  in  you)  will  pro 
tect  her  people  from  the  enormity  of  having  their  voice 
simulated  by  parties  never  appointed  to  speak  in  her 
behalf." 

Judge  Black,  also  for  the  Democrats,  followed.  Upon 
the  main  issue,  among  other  things,  he  said :  "There  has 
been  much  talk  here  about  getting  behind  the  action  of 
the  State.  I  do  believe  firmly  in  the  sovereign  power 
of  the  State  to  appoint  any  person  elector  that  she 
pleases,  if  she  does  it  in  the  manner  prescribed  by 
the  legislature ;  and,  after  she  has  made  the  appoint 
ment  in  that  manner,  no  man  has  a  right  to  go  behind 
her  act  and  say  that  it  was  an  appointment  not  fit 
to  be  made.  A  man,  whether  he  be  an  officer  of  the 
State  or  an  officer  of  the  general  government,  who 
undertakes  to  set  aside  such  an  appointment  is  guilty 
of  a  usurpation  and  his  act  is  utterly  void.  Therefore, 
if  the  governor  of  the  State  of  Florida,  after  this 
appointment  of  electors  was  made  by  the  people,  under 
took  to  certify  that  they  were  not  elected  and  put 


The  Legal  Battle  75 

somebody  else  in  the  place  which  belonged  to  them, 
his  act  is  utterly  void  and  false  and  fraudulent.  We 
are  not  going  behind  the  action  of  the  State;  we  are 
going  behind  the  fraudulent  act  of  an  officer  of  the  State 
whose  act  had  no  validity  in  it  whatever.  This  is  a 
question  of  evidence.  Who  are  the  electors?"  Calling 
attention  to  the  acts  of  the  State  making  known  this 
invalidity  of  Governor  Stearns'  certificate,  Black  closed 
by  referring  to  the  "Buckshot  war"  in  Pennsylvania  in 
1838-39,  and  the  result  of  the  contest,  as  a  precedent 
to  prove  that  a  fraudulent  vote  can  be  questioned  "even 
though  it  came  wrapt  in  the  forms  of  law."  * 

Mr.  Matthews  opened  for  the  Republicans.  He 
argued  that  the  election  of  President  consists,  not  of 
one  act,  but  of  a  series  of  acts;  that  the  President  is 
elected  by  men  chosen  who  have  a  right  to  make  a 
selection  as  well  as  an  election,  and  that  it  is  a  mistake 
to  consider  this  electoral  body  as  delegates  representing 
a  State  or  the  people  of  a  State,  as  agents  accomplish 
ing  their  will.  He  said  that  the  manner  of  the  ap 
pointment  of  the  electors  lay  within  the  control  of  the 
State  up  to  the  day  upon  which  Congress  had  pro 
vided  the  electors  should  vote,  and  that  after  that  day, 
the  act  of  appointment,  "so  far  as  the  State  authority  is 
concerned,  has  passed  beyond  the  limit  of  its  control. 
It  then  becomes  a  Federal  act.  It  then  becomes  one 
of  those  things  which  pass  into  the  jurisdiction,  what 
ever  that  may  be,  of  Federal  power.  It  is  the  deposit 
of  the  vote  of  the  elector  in  the  ballot  box  of  the 
United  States,  and  the  Nation  takes  charge  of  the 
ballot  box;"  and  after  that  time  whatever  power  is 
exerted  must  be  by  the  Federal  government.  He 

*  Proceedings,   96,   98,   100. 


76  The  Hayes-Tilden  Contest 

said :  "I  maintain  that  there  is  no  law,  either  State  or 
Federal,  whereby  that  [elector's]  title  can  be  judicially 
investigated  and  determined  after  he  has  cast  his  vote." 
When  the  ''person  appointed,  or  who  appears  to  have 
been  appointed,  having  in  his  possession  formal  evi 
dence  of  his  appointment,"  acts,  the  matter  passes 
beyond  the  State.  The  "actual  question  before  this 
Commission  is  not  which  set  of  electors  in  Florida 
received  a  majority  of  the  popular  votes ;  it  is  not 
which  set  appears  from  the  return  of  the  votes  made 
at  the  primary  voting-places  to  have  had  a  majority 
of  the  votes  so  returned ;  it  is  not  which  set,  by  looking 
at  the  county  returns,  appears  to  have  had  a  majority 
of  the  votes  so  compiled  ;  but  it  is  this  :  which  set,  by 
the  actual  declaration  of  the  final  authority  of  the 
State  charged  with  that  duty,  has  become  entitled  to 
and  clothed  by  the  forms  of  law  with  actual  incumbency 
and  possession  of  the  office."  That  final  authority  he 
found  to  be  alone  in  the  State  canvassing  board  and 
as  by  that  board  exercised  prior  to  December  6,  i876.5 

Mr.  Stoughton,  more  widely  known,  more  able,  and 
more  weighty  with  courts,  followed.  His  attention  was 
first  directed  to  a  consideration  of  the  jurisdiction 
and  powers  of  the  Commission.  He  said  : 

"There  are  some  facts  of  which  this  tribunal  can 
take  judicial  notice.  One  is,  the  laws  of  the  State  of 
Florida.  What  are  they  in  reference  to  this  subject, 
and  what  was  done  in  pursuance  of  them,  and  what  is 
proposed  to  be  done  by  testimony — as  it  is  called — for 
the  purpose  of  overthrowing  what  was  done  in  pur 
suance  of  the  laws  of  that  State? 

"In    the   first   place,    its    statute  authorized 

slb.  102,  108. 


The  Legal  Battle  77 

the  creation  of  an  ultimate  returning  board  having 
capacity  to  certify  the  number  of  votes  cast  for  electors 
and  who  were  elected;  and,  if  that  board  performed 
its  duty,  however  crowded  with  error,  however  mis 
taken,  however,  if  you  please,  tainted  by  fraud,  if  that 
board  discharged  the  duty  cast  upon  it  by  law,  and 
did  ascertain  and  did  declare  how  many  votes  for  par 
ticular  sets  of  electors  were  cast,  and  did  certify  and 
declare  who  were  the  persons  elected  electors,  that 
ends  all  inquiry  here,  assuming  that  you  may  go  behind 
the  governor's  certificate,  unless,  indeed,  you  may  re 
treat  behind  the  action  of  the  returning  board,  the 
final  tribunal  for  that  purpose  created  by  the  laws  of 
the  State,  and  ascertain  whether  it  did  or  did  not, 
according  to  your  judgment,  faithfully  return  the  votes 
cast  and  faithfully  declare  who  were  the  persons 
elected." 

Here  he  read  from  the  Florida  statute  of  1872, 
creating  the  State  board  and  defining  its  powers,  and 
continued : 

"There  was  committed  to  this  board  by  that  statute 
a  capacity  to  determine  and  decide — finally  and  con 
clusively — how  many  lawful  votes  were  cast  and  who 
were  elected  electors  *  *  *  Then,  may  it  please 
your  honors,  your  jurisdiction  is  to  count  the  electoral 
votes ;  your  power  is  in  counting  to  resort  to  such  proof, 
if  any,  as  the  Constitution  and  laws  permit.  You 
are  dealing  with  a  delicate  subject  when  the  question 
of  jurisdiction  is  reached.  You  are  dealing  with  the 
supremacy  of  a  State  when  you  undertake  to  touch  its 
final  tribunal  for  the  purpose  of  overhauling  and  up 
setting  its  action.  *  *  * " 

Briefly  he  discussed  the  quo  warranto,  and  the  sub- 


78  The  Hayes-Tilden  Contest 

sequent  acts  of  the  legislature,  contending  that  the  acts 
of  the  Hayes  men  were  those  of  de  facto  officers,  and 
could  not  be  invalidated  by  "subsequent  judicial  action 
or  ex  post  facto  legislation,"  and  in  conclusion  said : 

"The  alleged  fault  of  the  lawful  returning  board 
was  not  fraud — at  which  my  friends  are  so  shocked — 
but  mistake.  After  electors  are  thus  appointed  law 
fully,  but  possibly  by  a  mistaken  view  of  the  law  by 
the  board  declaring  their  election,  its  conclusion  must 
forever  stand."  6 

Hon.  William  M.  Evarts,  yet  more  distinguished, 
with  the  prestige  of  an  international  reputation  behind 
him,  in  sentences  rather  involved  yet  adroit,  was  the 
next  Republican  speaker.  He  added  no  new  argu 
ment  to  what  had  proceeded.  He  contended  that  the 
Commission  could  not  "entertain  any  subject  of  ex 
traneous  proof.  The  process  of  counting  must  go  on. 
If  a  disqualified  elector  has  passed  the  observation  of 
the  voters  in  the  State,  passed  the  observation  of  any 
sentinels  or  safeguards  that  may  have  been  provided  in 
the  State  law ;  when  these  are  all  overpassed  and  the 
vote  stands  on  the  presentation  and  authentication  of 
the  Constitution — that  is,  upon  the  certificates  of  the 
electors  themselves  and  of  the  governor — it  must  stand 
unchallengeable  and  unimpeachable  in  the  count."  He 
argued  that  the  Commission  had  no  judicial  powers, 
and  could  neither  compel  witnesses  nor  hear  their  testi 
mony.  He  contended  that  the  Hayes  men  were  de  facto 
officers  and,  overlooking  the  applicability  of  the  quo 
warranto  where  one  even  theatens  to  exercise  the  func 
tions  of  an  office,  that  the  Florida  quo  warranto  ad- 
8lb.  109  to  112. 


The  Legal  Battle  79 

mitted  the  Hayes  men  to  be  in  possession  and  exercise 
of  the  office  of  electors. 

Under  the  Federal  Constitution,  he  argued  "in  the 
first  place,  the  only  transaction  of  choosing  a  Presi 
dent  begins  with  the  deposit,  so  to  speak,  in  the 
Federal  urn  of  the  votes  of  certain  persons  named  and 
described  in  the  Constitution  as  electors.  From  the 
moment  of  that  deposit  the  sealed  vote  lies  protected 
against  destruction  or  corruption  in  the  deposit  pro 
vided  for  it,  the  possession  of  Federal  officers  in 
Federal  offices.  The  only  other  step,  after  that,  is  the 
opening  of  those  votes  and  their  counting.  All  that 
precedes  that  deposit  of  the  votes  by  electors  relates  to 
their  acquisition  of  the  qualifications  which  the  Con 
stitution  prescribes.  These  qualifications  are  nothing 
but  appointment  by  the  State,  and  with  that  the  act 
of  Congress  and  the  Federal  Constitution,  with  due 
reverence  to  State  authority,  do  not  interfere.  *  *  * 

"These  electors,  not  being  marked  and  designated 
by  any  but  political  methods,  are  by  the  Constitution 
made  dependent  for  their  qualifications  upon  the  action 
of  the  State.  If  the  State  does  not  act  there  are  no 
qualified  electors.  If  the  State  does  act,  whatever  is 
the  be-all  and  the  end-all  of  the  State's  action  up  to  the 
time  that  the  vote  is  cast  is  the  be-all  and  the  end-all 
of  the  qualification  of  the  elector,  and  he  is  then  a  qual 
ified  elector  depositing  his  vote  to  accomplish  its  pur 
pose,  and  to  be  counted  when  the  votes  are  collected." 

He  contended  that  the  "end-all"  of  the  State's  action 
under  the  State  law  of  Florida  was  reached  with  the 
determination  of  the  "political  canvass,"  of  which  there 
could  be  no  reconsideration  and  no  judicial  review  by 
the  Commission,  because  "every  step  and  stage  of  that 


8o  The  Hayes-Tilden  Contest 

action,  rightly  or  wrongly,  honestly  or  dishonestly, 
purely  or  fraudulently,  has  conferred  qualifications  such 
as  the  Federal  Constitution  requires  in  the  appointment 
by  the  State  through  the  methods  that  it  has  provided." 

He  offered  no  new  reasons  for  the  Republican  posi 
tion;  he  gave  no  light  upon  his  interpretation  of  the 
Florida  law;  he  seemed  to  stand  in  abject  terror  of 
what  he  called  interpolating  judicial  inquiries  "into  this 
scheme  of  popular  sovereignty  in  its  political  action," 
lest  it  "will  make  it  as  intolerable  in  its  working,  will 
so  defraud  and  defeat  the  popular  will,  by  the  nature 
of  the  necessary  consequence  of  the  judicial  interven 
tion,  that,  at  last,  the  government  of  the  judges  will 
have  superseded  the  sovereignty  of  the  people,  and 
there  will  be  no  cure,  no  recourse  but  that  which  the 
children  of  Israel  had,  to  pray  for  a  king."  7 

A  strange  argument  for  Evarts ! !  The  very  facts, 
which  he  so  diligently  sought  to  keep  from  the  Com 
mission  and  which  he  did  not  attempt  to  deny,  were 
a  powerful  contradiction  to  what  might  otherwise  have 
been  an  argument.  Surely  Evarts  the  man  and  citizen, 
rather  than  the  partizan  counsel  who  piloted  the  Re 
publican  case  through  all  the  hearings  of  the  Com 
mission  down  to  the  decision  of  the  Oregon  contro 
versy,  would  not  prefer  the  government  of  the  State 
canvassing  board,  more  narrow  than  courts,  without 
the  means  of  investigation  which  belonged  to  courts, 
and  which  in  its  pro-Hayes  report  actually  "superseded 
the  sovereignty  of  the  people !" 

Upon  this  part  of  the  case  O'Conor  concluded  for 
the  Democrats.  Proceeding  to  define  the  powers  of 
the  Commission,  he  quoted  the  law  creating  the  Com- 

7ib.   117  to  124. 


The  Legal  Battle  81 

mission  which  declared  that  it  should  have  "the  same 
powers,  if  any,  now  possessed  by  the  two  Houses  acting 
separately  or  together,"  and  said : 

"Now,  that  no  power  of  any  description  deserving  the 
name  of  a  power  to  investigate  and  define  resides  in 
the  president  of  the  Senate  is  most  plain  from  the  very 
words  of  the  Constitution.  *  *  *  He  has  no  means 
of  taking  testimony  *  *  *  and  I  humbly  submit 
that  it  is  most  manifest  that  he  has  none  but  the 
merest  of  clerical  powers  *  *  *  he  is  to  'open  all  the 
certificates'  *  *  *  But  when  we  come  to  the  pre 
scription  that  there  shall  be  a  count,  we  are  not  told 
that  there  shall  be  a  count  of  all  the  certificates,  but 
that  there  shall  be  a  count  of  'the  votes.'  This,  I 
humbly  submit,  introduces  a  necessary  implication  that 
somehow  and  by  some  authority  there  shall  be  made, 
if  necessary,  a  selection  of  the  actual  votes  from  the 
mass  of  papers  produced  *  *  *  This  is  left  to  an 
implication  that  it  is  to  be  exercised  by  those  who 
may  have  occasion  to  act  officially  on  the  electoral 
vote.  *  *  *  The  competency  of  each  House  to  as 
certain  the  truth  is  unquestionable.  Each  has  com 
plete  powers  of  investigation ;  they  can  take  proof 
through  their  committees  or  otherwise  as  to  any  mat 
ter  on  which  they  may  be  obliged  to  decide  *  *  * 
Our  construction  thus  recognizes  in  those  two  bodies 
on  such  a  contingency  as  is  here  presented  full  power 
to  do  whatever  may  be  needful  to  the  accomplishment 
of  justice." 

In  answer  to  the  question,  "How  far  are  we  to  go  in 
this  case?"  he  asserted  it  would  be  necessary  to  go  no 
further  than  "to  make  a  correction  of  the  unlawful 
extra-judicial  acts  of  the  canvassing  board."  He  said 


82  The  Hayes-Tilden  Contest 

that  the  quo  warranto  proceeding  and  all  of  the  sub 
sequent  acts  upon  which  the  Democrats  relied  were 
admissible  to  show  the  illegal  act  of  the  pro-Hayes 
claimants  and  the  illegal  nature  of  the  State  board, 
pointing  out  that  as  State  officers  the  canvassing  board 
was  subject  to  correction  by  the  State,  and  that  the 
quo  ivarranto,  commenced  in  due  season,  had  deter 
mined  the  pro-Hayes  report  to  be  utterly  void,  having 
annulled  it  before  the  time  for  the  count  of  the 
electoral  vote  by  the  Federal  power.8 

Thus  the  issues  were  made,  and  the  evidence  by 
which  the  Democrats  proposed  to  sustain  their  positions 
was  clearly  indicated.  The  Commission  met  in  secret 
session  and  debated  among  themselves  for  several 
hours.  There  is  no  record  of  those  debates;  and  the 
only  record  we  have  of  the  views  expressed  by  the 
members  is  left  us  in  their  several  opinions  in  which 
most  of  them  expressed  themselves  on  all  the  questions 
involved.  The  next  light  we  have  upon  the  proceedings 
is  when  Judge  Miller  moved  that  the  Commission 
order: 

"That  no  evidence  will  be  received  or  considered  by 
the  Commission  which  was  not  submitted  to  the  joint 
convention  of  the  two  Houses  by  the  president  of  the 
Senate  with  the  different  certificates,  except  such  as 
relates  to  the  eligibility  of  F.  C.  Humphries,  one  of 
the  electors." 

By  vote  of  eight  Republicans  to  the  seven  Demo 
crats,  the  motion  was  sustained. 

Partizan,  indefinite  in  language  as  to  what  evi 
dence  was  submitted  to  the  joint  convention,  a  viola- 
sib.  124  to  126.  See  The  Nation,  February  8,  1877,  p.  84, 
for  a  contemporary  appreciation  of  O'Conor's  powerful  speech. 


The  Legal  Battle  83 

tion    of    Congressional    precedents,    this    order    clearly 
foreshadowed  the  end. 

Its  partisan  nature  for  one  thing  is  shown  in  this: 
The  peculiar  language  used  by  Judge  Miller  in  this 
order  that  "no  evidence  will  be  received,"  except  such 
as  relates  to  the  eligibility  of  F.  C.  Humphries,  "one 
of  the  electors,"  placed  the  Democrats  on  the  Commis 
sion  in  an  unfair  position.  If  they  voted  for  that  reso 
lution,  they  voted  for  the  language  which  stated  that 
Humphries  was  "one  of  the  electors."  In  voting 
against  it,  it  left  the  matter  unavoidably  indefinite  as 
to  what  evidence  they  wished  the  Commission  to 
hear  and  has  left  them  in  a  position  which  some 
writers  misrepresent  as  a  desire  on  their  part  to  use 
the  power  of  Congress  to  override  State  action.  But, 
believing  as  they  did  that  no  action  of  the  sovereign 
power  of  the  State  of  Florida  had  determinedHumph- 
ries  to  be  "one  of  the  electors,"  they  could  not  support 
a  resolution  from  which  any  inference  whatever  could 
be  drawn  to  the  effect  that  they  did  not  rely  fully  upon 
what  are  termed  the  subsequent  acts  of  the  State  and 
upon  the  position  that  the  pro-Hayes  report  of  the 
State  board  was  not  the  act  of  the  State.  On  the  other 
hand,  the  inconsistency  of  the  Republicans  is  shown  in 
their  action  on  the  very  next  motion.  Commissioner 
Abbott,  immediately  following  the  vote  upon  the  above 
resolution,  moved:  "That  in  the  case  of  Florida  the 
Commission  will  receive  evidence  relating  to  the  eli 
gibility  of  Frederick  C.  Humphries,  one  of  the  persons 
named  in  certificate  No.  I,  as  an  elector."8  Whereupon 
all  the  Republicans  except  Bradley  voted  in  the  nega 
tive.  There  is  a  vast  difference  between  the  two  state- 
•  Proceedings,  139. 


84  The  Hayes-Tilden  Contest 

ments,  and  why  all  the  Republicans  but  the  one  should 
have  voted  against  Abbott's  resolution,  for  other  than 
the  most  inexcusable  partizan  reasons,  I  cannot  see. 
The  Abbott  resolution  left  the  question  whether 
Humphries  was  "one  of  the  electors"  open  without  ex 
pressing  an  opinion,  since  the  eligibility  as  an  elector 
is  quite  distinct  from  the  question  as  to  whether  one 
is  an  elector.  Then,  the  resolution  as  proposed  by  Judge 
Miller  and  sustained  by  the  Republicans,  in  its  use 
of  the  words  "one  of  the  electors"  as  to  Humphries, 
was  entirely  untimely,  for  the  case  as  to  who  were 
electors  had  not  yet  been  presented  upon  its  full  merits, 
and  the  argument  was  not  concluded  for  two  days  there 
after. 


V. 
The  Final  Majority  Decision. 

WHEN  the  Commission,  having  entered  the 
order  concerning  the  evidence,  again  con 
vened  on  February  8,  George  Hoadly  of 
Ohio,  Ashbel  Green  of  New  Jersey,  and 
William  C.  Whitney  of  New  York,  appeared  for  the 
Democrats  along  with  the  counsel  theretofore  present. 
The  evidence  concerning  Humphreys  was  heard; 
Hoadly  and  Green  then  argued  the  whole  case  for  the 
Democrats,  and  Shellabarger  and  Evarts  for  the  Re 
publicans.  Judge  Hoadly  made  a  learned  argument 
inquiring  for  the  right  of  the  Federal  counting  power 
to  question  the  eligibility  of  electors.  Green  followed, 
presenting  a  very  clear  and  forcible  survey  of  the 
papers  before  the  Commission  that  had  been  certified 
by  the  president  of  the  Senate.  Shellabarger  and 
Evarts  replied  for  the  Republicans,  and  Merrick,  for 
the  Democrats,  closed  the  discussion, — and  the  Florida 
Case  went  for  the  last  time  into  the  secret  councils  of 
the  Commission.  Since  these  concluding  arguments 
developed  no  change  of  position  on  the  part  of  coun 
sel,  we  now  pass  to  a  consideration  of  the  final  deci 
sion. 

It  was  February  9  when  the  decision  was  put  into 
writing,  signed  by  the  eight  Republicans  concurring 
therein,  and  transmitted  to  the  president  of  the  Senate. 
Reciting  the  caption  of  the  act  under  which  the  Com 
mission  sat,  the  report  is  in  these  words :  "The  Electoral 
Commission  mentioned  in  said  act,  having  received 

85 


The  Hayes-Tilden  Contest 


certain  certificates  and  papers  purporting  to  be  certifi 
cates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Florida,  and  the  ob 
jections  thereto  submitted  to  it  under  said  act,  now 
report  that  it  has  duly  considered  the  same,  pursuant 
to  said  act,  and  has  decided,  and  does  hereby  decide, 
that  the  votes  of  Frederick  C.  Humphreys,  Charles  H. 
Pearce,  William  H.  Holden,  and  Thomas  W.  Long, 
named  in  the  certificate  of  M.  L.  Stearns,  governor  of 
said  State,  which  votes  are  certified  by  said  persons,  as 
appears  by  the  certificate  submitted  to  the  Commission  as 
aforesaid,  and  marked  'number  one'  by  said  Commission, 
and  herewith  returned,  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States,  and  that  the  same 
are  lawfullly  to  be  counted  as  therein  certified,  namely: 
four  (4)  votes  for  Rutherford  B.  Hayes,  of  the  State 
of  Ohio,  for  President,  and  four  (4)  votes  for  Wil 
liam  A.  Wheeler,  of  the  State  of  New  York,  for  Vice- 
President.  • 

"The  Commission  has  also  decided,  and  hereby  de 
cides  and  reports,  that  the  four  persons  first  before 
named  were  duly  appointed  electors  in  and  by  said  State 
of  Florida. 

"The  ground  of  this  decision,  stated  briefly,  as  re 
quired  by  said  act,  is  as  follows  : 

"That  it  is  not  competent  under  the  Constitution  and 
the  law,  as  it  existed  at  the  date  of  the  passage  of  said 
act,  to  go  into  evidence  aliunde  the  papers,  opened 
by  the  president  of  the  Senate  in  the  presence  of  the 
two  Houses  to  prove  that  other  persons  than  those 
regularly  certified  to  by  the  governor  of  the  State  of 
Florida,  in  and  according  to  the  determination  and 
declaration  of  their  appointment  by  the  board  of  State 


The  Decision  87 

canvassers  of  said  State  prior  to  the  time  required  for 
the  performance  of  their  duties,  had  been  appointed 
electors,  or  by  counterproof  to  show  that  they  had  not, 
and  that  all  proceedings  of  the  courts  or  acts  of  the 
legislature  or  of  executive  of  Florida  subsequent  to  the 
casting  of  the  votes  of  the  electors  on  the  prescribed  day, 
are  inadmissible  for  any  such  purpose. 

"As  to  the  objection  made  to  the  eligibility  of  Mr. 
Humphreys,  the  Commission  is  of  opinion  that,  with 
out  reference  to  the  question  of  the  effect  of  the  vote 
of  an  ineligible  elector,  the  evidence  does  not  show  that 
he  held  the  office  of  shipping-commissioner  on  the  day 
when  the  electors  were  appointed. 

"The  Commission  has  also  decided,  and  does  hereby 
decide  and  report,  that,  as  a  consequence  of  the  fore 
going,  and  upon  the  grounds  before  stated,  neither  of 
the  papers  purporting  to  be  certificates  of  the  electoral 
votes  of  said  State  of  Florida,  numbered  two  (2)  and 
three  (3)  by  the  Commission,  and  herewith  returned, 
are  the  certificates  or  the  votes  provided  by  the  Con 
stitution  of  the  United  States,  and  that  they  ought  not 
to  be  counted  as  such."  1 

What  the  report  gives  as  "ground"  is  hardly  ground — 
more  properly  it  is  the  conclusion  reached  in  arguing 
from  the  ground  or  major  premise  upon  which  the 
majority  based  its  reasoning.  The  true  ground,  of 
vital  importance  in  reaching  the  legal  value  of  the 
decision,  can  only  be  learned  by  an  examination  of  the 
individual  opinions  filed  by  the  several  members  of  the 
Commission.  From  these  it  will  be  seen  that  what 
some  historians  claim  is  the  true  ground  of  the  deci 
sion  is  misleading;  and  that  the  real  ground  lies 

1  Proceedings,   196. 


The  Hayes-Tilden  Contest 


behind  the  question  why  the  specified  evidence  was 
held  to  be  incompetent. 

It  is  striking  that  no  reasons  whatever  are  given  for 
the  decision  reached  upon  what  the  majority  held  to  be 
competent  evidence.  Why  the  majority  regarded  the 
certificate  of  Governor  Stearns  as  of  more  dignity 
that  that  of  the  attorney-general;  and  why  the  "deter 
mination  and  declaration  of  the"  appointment  of  the 
Hayes  electors  by  the  board  of  State  canvassers,  was 
regarded  as  having  unimpeachable  dignity  and  was 
credited  with  elective  power,  is  nowhere  intimated  in 
the  majority  report. 

To  get  at  the  real  ground  upon  which  the  majority 
professed  to  stand,  we  must  read  the  decision  in  the 
light  of  the  opinions  and  arguments  filed  by  those  who 
therein  concurred. 

As  between  the  certificate  of  the  governor  and  the 
attorney-general,  Judge  Strong  said  that  the  latter  had 
no  power  to  certify  that  the  Tilden  men  were  electors.2 
That  is,  he  agreed  with  the  contention  of  counsel  and 
the  objectors  that  there  was  "no  executive  authority" 
in  the  attorney-general.  Frelinghuysen  said  the  attor 
ney  general's  "certificate  has  in  law  no  more  validity 
than  a  letter  from  any  other  citizen  of  Florida  would 
have,  and  cannot  be  recognized  by  this  Commission."3 

This  conclusion,  it  must  be  kept  in  mind,  was  reached 
by  an  interpretation  of  the  laws  of  Florida.  There 
was  no  other  source  from  which  and  no  other  way  by 
which  it  could  be  known  what  were  the  powers  of  the 
attorney-general.  The  correctness  of  the  Republican 
position  on  this  point  will  be  examined  in  a  subsequent 

»Ib.  999. 
3Ib.   850. 


The  Decision  89 

chapter,  "The  Executive  Authority  of  Florida."  This 
question  arises  upon  the  papers  which  the  Commission 
held  to  be  properly  before  them,  and  upon  which 
they  rested  their  decision. 

Next,  why  was  no  evidence  "aliunde  the  papers  opened 
by  the  president  of  the  Senate  in  the  presence  of  the  two 
Houses"  admissible  to  prove  that  other  persons  were 
electors  rather  than  those  certified  by  Governor  Stearns 
"in  and  according  to  the  determination  and  declaration 
of"  the  State  canvassing  board  made  prior  to  the  time 
when  the  electors  were,  by  the  Federal  law,  required 
to  vote?  Why  were  the  proceedings  of  the  courts  and 
acts  of  the  legislature  and  of  the  executive  of  Florida 
subsequent  to  the  day  prescribed  for  the  voting  of  the 
electors,  inadmissible  to  show  that  the  finding  of  the 
State  board  upon  which  Governor  Stearns  rested  his 
certificate,  was  illegal,  a  usurpation,  and  not  the  act 
of  the  State?  What  were  the  reasons  assigned  by  the 
Republicans  for  holding  that  the  pro-Hayes  report  of  the 
State  canvassing  board  was  conclusive  against  the 
world? 

Garfield  held  that  the  authority  in  the  State  to  ap 
point  electors  carried  with  it  the  power  to  provide  the 
mode,  as  by  popular  election,  and  also  to  "provide  by 
what  means  the  result  of  such  election  may  be  verified 
and  declared,"  and  that  the  laws  of  Florida  had  made 
the  provision,  vesting  in  the  State  board  of  canvassers 
the  right  of  "final  determination  and  declaration  of  the 
result."  Interpreting  the  State  law  so  as  thus  to  lodge 
the  final  power,  the  inevitable  conclusion  was  that  the 
pro-Hayes  report  of  the  State  board  was  final  as  against 
the  State,  whether  acting  through  her  judicial  agencies 
or  otherwise ;  and,  hence,  "the  final  determination  of 


go  The  Hayes-Tilden  Contest 

the  result  of  the  election  having  been  declared  by  the 
authority  -empowered  to  determine  and  declare  it, 
that  act  becomes  the  act  of  the  State." 

This  conclusion  was  Garfield's  interpretation  of  the 
Florida  law  as  found  in  section  four  of  the  act  of 
February  27,  1872.* 

Strong  said  that  a  State  "may  provide  in  any  way  to 
purify  her  elections,  and  may  devise  means  to  correct 
an  erroneous  canvass,  or  throw  out  illegal  votes.  She 
may  do  this  in  the  most  summary  way.  She  may 
accomplish  it  completely  before  the  day  for  casting 
the  electoral  vote  arrives.  *  *  *  [But]  in  all  elec 
tions  there  are  and  there  must  be  finalities.  There 
must  be  an  ultimate  canvass  and  ascertainment  of  the 
result.  That  must  be  final  and  conclusive  until  reversed, 
though  it  may  not  be  in  exact  accordance  with  the 
actual  facts. 

"The  Florida  statute  provides  that  its  presidential 
electors  shall  be  appointed  by  a  popular  vote,  and  it 
directs  that  the  result  of  that  vote  shall  be  determined 
and  declared  by  a  State  board  of  canvassers  constituted 
as  directed.  That  board  is  made  by  the  statute  the 
ultimate  determinant  and  declarant  of  what  the  vote 
was  and  of  its  results,  and  it  has  power  in  certain 
cases  to  exclude  county  returns.  The  board  is  to 
determine  and  to  declare.  Such  is  the  plain  direction 
of  the  act.  *  *  * 

"I  admit  the  declaration  and  determination  of  the. 
board  may  be  set  aside  by  any  authority  the  State  may 
designate  to  try  contested  elections.  It  may  be  shown 
to  be  erroneous  on  the  trial  of  a  quo  warranto.  But 

*Ib.    963,    966. 


The  Decision  91 

until  thus  reversed  it  is  and  must  be  final,  obligatory 
upon  the  governor  as  upon  all  others." 

Such  being,  in  Judge  Strong's  opinion,  the  Florida 
law,  and  since  the  quo  warranto  had  not  been  con^ 
eluded  and  the  other  acts  of  the  State  upon  which  the 
Democrats  relied  provided,  before  the  day  upon  which 
the  Hayes  men  claimed  to  have  cast  the  electoral 
vote  of  the  State,  he  took  the  ground  that  they  had 
"all  the  insignia  of  title;"  that  is,  they  had  the  gov 
ernor's  certificate  and  what  Strong  held  to  be  "the 
judicial  determination  and  declaration  of  the  State 
canvassing  board  that  they  had  been  elected."  There 
fore,  he  reasoned,  "having  at  the  time  of  their  action 
all  the  evidences  of  right  known  to  the  law,"  theirs 
was  "an  act  rightfully  done"  and  must  stand  unques 
tionable.5 

Hence  Judge  Strong's  interpretation  of  this  same 
Florida  law  vests  in  the  board  of  State  canvassers : 

1.  The    judicial    power    they    exercised    in    reaching 
the  pro-Hayes  report; 

2.  That  the  board  by  the  statute  law  is  the  ultimate 
determinant  and  declarant  of  the  result  of  the  popular 
election. 

Upon  the  ground  as  thus  deduced  he  held  that  the 
subsequent  acts  of  Florida  were  inadmissible  and  not 
competent  to  show  anything  contradicting  the  authority 
of  the  Hayes  men  and  showing  the  invalidity  and 
illegality  of  all  they  had  assumed  to  do. 

Judge  Miller  also  quoted  the  law  of  February  27, 
1872,  and  held  that  it  empowered  the  State  board  to 
review  and  reject  "the  poll  of  any  voting  precinct;" 
that  it  had  more  than  mere  ministerial  power;  and, 

slb.  997-999. 


92  The  Hayes-Tildcn  Contest 

since  the  board  had  exercised  judicial  power  in  reach 
ing  its  pro-Hayes  report,  notwithstanding  that  in  so 
doing  it  had  actually  rejected  the  entire  poll  of  several 
precincts,  the  person  named  by  it  in  the  certificate  of  the 
result  "is  from  that  moment  a  duly  appointed  elector," — 
because,  on  the  ground,  "the  fact  of  his  appointment, 
that  is,  his  election,  has  been  ascertained  and  declared 
by  the  tribunal,  and  the  only  tribunal,  to  which  the  duty 
and  power  of  so  declaring  has  been  confided  by  law."6 

Therefore  Judge  Miller  concluded  that  on  this  ground 
the  pro-Hayes  report  was  final  against  both  the  State 
and  the  Federal  counting  power. 

Judge  Bradley  held  that  the  Federal  counting  power 
must  "ascertain  whether  the  State  has  made  an  ap 
pointment  according  to  the  form  prescribed  by  its 
laws."  Looking  for  the  law  and  measuring  the  acts 
of  the  State  officers  thereby,  he,  too,  held  that  the 
Commission  acting  for  Congress  in  counting  the 
electoral  votes  "are  bound  to  recognize  the  determina 
tion  of  the  State  board  of  canvassers  as  the  act  of  the 
State,  and  as  the  most  authentic  evidence  of  the  ap 
pointment  made  by  the  State;  and  that  while  they  may 
go  behind  the  governor's  certificate,  if  necessary,  they 
can  only  do  so  for  the  purpose  of  ascertaining  whether 
he  has  truly  certified  the  results  to  which  the  board 
arrived.  They  cannot  sit  as  a  court  of  appeals  on  the 
action  of  that  board." 

This  conclusion  of  Bradley  is  on  the  ground  that 
the  action  of  the  board  "involved  the  exercise  of  deci 
sion  and  judgment  *  *  *  a  decision  quasi-judicial." 
So  he  argued  that  neither  the  Federal  counting  power 
nor  the  State  by  quo  warranto  or  otherwise  could  ques- 

6  Ib.  1008,  1010.  ,  *  I"7! 


The  Decision  93 

tion  the  determination  of  the  board,  because  "to  cor 
rect  the  finding  of  the  board,  therefore,  would  not  be  to 
correct  the  mere  statement  of  fact,  but  to  reverse  the 
decision  and  determination  of  a  tribunal."7 

Hoar  .said:  "It  is  true  votes  are  to  be  counted  [i.  e., 
the  electoral  votes].  But  it  is  the  votes  of  those  per 
sons  whom  the  proper  authority  has  determined  and 
certified  were  entitled  to  cast  them."  He  held  that 
the  proper  authority  to  determine  and  certify  who 
were  entitled  to  cast  the  electoral  votes,  lay  entirely 
in  the  State  board ;  and  that  the  statute  of  the  State 
vested  this  power  in  the  board  subject  to  no  review. 
He  admitted  that  there  could  be  no  question  of  de  facto 
action,  since  neither  set  of  claimants  was  "more  fully 
clothed  with  the  office  than  their  competitors.  "Each 
of  the  sets  of  electors  who  claimed  to  have  cast  their 
votes  in  Florida  did  everything  which  was  necessary 
to  the  entire  execution  of  the  office  of  presidential 
elector."  8 

I  have  permitted  the  participants — the  objectors,  the 
counsel,  and  the  Commissioners — to  define  the  issues 
and  to  set  forth  the  grounds  of  their  conclusions  in 
their  own  words  because  of  the  fact  that  even  the 
Republicans  themselves  and  some  writers  since  are 
incorrect  in  their  assertions  as  to  the  ground  of  the 
majority  decision.  As  I  pointed  out  when  presenting 
the  arguments  of  counsel,  the  issue  was  as  to  where 
the  State  law  lodged  the  power  to  act  finallv  for  the 
State  in  ascertaining  who  had  been  appointed  electors; 
and  when,  with  reference  to  the  day  on  which  the 
Federal  law  required  the  electors  to  vote,  the  final  steps 

TIb.l022,  1024. 
•Ib.  956,  958. 


94  The  Hayes-Tilden  Contest 

might  be  taken  by  the  State;  and,  last,  by  what  should 
and  must  the  Federal  counting  power,  in  the  case 
before  us,  the  Commission,  be  led  to  know  the  law 
of  the  State  that  defined  the  credentials  of  the  true 
electors. 

When  Senator  Hoar  in  his  "Autobiography  of 
Seventy  Years"  says :  f^The  simple  doctrine  on  which 
the  Commission  proceeded  was  that  the  right  to  deter 
mine  absolutely  and  finally  who  are  the  duly  chosen 
presidential  electors  is  committed  by  the  Constitution 
to  the  States,"9  he  does  not  give  an  intimation  as  Jo 
the  true  ground  ~upon  which^  the~Republicari  majority 
a^ifid.  His  statement  is  misleading  at  least  to  the 
casual  reader.  Yet  it  is  representative  of  assertions 
made  in  reference  to  this  question  by  his  party,  and  by 
members  of  the  Commission. 

James  Ford  Rhodes,  in  his  most  recent  history  of  this 
subject,  follows  the  empty  claims  of  the  Republican 
majority, — "steals  the  livery  of  the  court  of  heaven  in 
which  to  serve  the  devil,"  as  Abbott  aptly  put  it  in  his 
argument  in  the  secret  session  of  the  Commission.  Dr. 
Rhodes  says  that  it  is  remarkable  how  ardently  the 
former  opponents  of  States'  rights  argued  for  them. 
Then  he  continues : 

"On  the  other  hand  the  Democrats  were  equally  in 
consistent.  As  a  party  they  had  been  defenders  of 
State's  rights  and  their  Southern  wing  had  carried  the 
doctrine  to  a  bitter  extremity,  but  now  they  invoked 
the  power  of  Congress  to  override  State  action  and 
right  a  grievous  injustice  committed  by  what  they 
had  formerly  maintained  was  a  sovereign  authority." v 

•Vol.  1,  378. 
10  7    History   of  the  United   States,   240. 


The  Decision  95 

As  to  the  position  of  the  Democrats,  the  very  re 
verse  is  true.  The  Democrats  asked  the  Federal  count 
ing-power  to  accept  as  final  the  adjudication  of  the 
State  as  "the  valid  or  lawful  certification  or  authenica- 
tion"  of  the  Florida  electors  as  that  adjudication  was 
expressed  by  the  judgment  in  a  quo  warranto,  and  con 
firmed  by  an  act  of  the  Florida  legislature.  Or,  should 
this  be  refused,  should  the  Commission  hold  that  it 
had  power  to  determine  what  it  would  recog 
nize  as  the  elector's  credentials,  then  the  Demo 
crats  asked  the  Federal  power  to  take  that  as  the 
action  of  the  State  which  had  been  done  according  to 
the  State  law,  according  to  the  manner  provided  by 
her, — as  her  high  courts  interpreted  and  enforced  it; 
that  that  interpretation  defining  the  provided  manner 
of  the  choice,  given  by  the  State  herself,  be  taken  as 
the  law — the  definition  of  the  elector's  credential;  since 
a  law  is  none  other  than  its  interpretation  and  applica 
tion  to  the  facts.  For  this  interpretation  the  Demo 
crats  pointed  to  decisions  of  the  State's  highest  courts, 
the  settled  enforcement  of  those  decisions,  the  opin 
ion  of  the  court  in  the  mandamus  in  this  case,  and 
to  the  common  law  applicable  to  the  situation  and  in 
force  in  Florida.  The  injustice  of  which  the  Demo 
crats  complained  had  not  been  committed  by  "State 
action,"  they  proposed  by  these  means  to  show.  The 
power  of  Congress  was  invoked  by  the  Democrats  "to 
override"  nothing  done  by  the  State.  The  power  of 
Congress,  in  proceeding  to  count  the  electoral  votes, 
was  asked  to  recognize  "the  sovereign  authority"  of 
the  State  of  Florida. 

The  Republicans  insisted  that  the  Federal  power 
should  ignore  or  reverse  the  adjudications  of  the  State 


96  The  Hayes-Tilden  Contest 

courts  and  their  legislative  confirmation.  Then,  hav 
ing  treated  these  as  not  the  act  of  the  State,  they 
insisted  that  the  Commission,  as  in  fact  it  admitted  it 
must  do,  should  interpret  the  local  State  laws  and  deter 
mine  therefrom  where  resided  the  State's  sovereign 
power;  and  that  the  power  of  Congress  should  be 
exercised  to  weigh  the  various  acts  of  the  State  and 
those  who  claimed  to  act  for  her,  and  from  them  deter 
mine,  regardless  of  State  action  with  reference  thereto 
and  heedless  of  her  interpretation  thereof,  which  act 
constituted  the  act  of  the  State  and  an  exercise  of  her 
sovereign  power.  By  thus  interpreting  her  laws  and 
measuring  certain  acts,  the  Republicans  sustained  the 
pro-Hayes  report  of  the  State  canvassing  board,  hold 
ing  that  it  had  been  made  in  conformity  to  the  State 
law,  and  that  that  action  had  become  the  act  of  the 
State  under  the  law  of  1872,  which  defined  the  functions 
of  the  State  board.  Thus  the  Stearns  certificate  was 
sustained  and  the  Hayes  electoral  votes  counted.  And 
this  was  done,  permit  me  to  repeat,  not  by  constru 
ing  or  interpreting  and  applying  any  Federal  law  or 
any  part  of  the  United  States  Constitution;  for,  as 
General  Lew  Wallace  stated  in  his  report  of  the  pro 
ceedings  before  the  State  board,  the  legality  and 
validity  of  the  board's  action  must  be  determined  en 
tirely  by  the  local  statute  of  the  State.11  The  con 
struction  given  by  the  majority  of  the  Commission, 
acting  for  Congress,  as  I  have  said  and  as  I  hope 
fully  to  show,  was  entirely  at  variance  with  the  settled 
law  and  construction  as  long  recognized  by  Florida. 
It  was  the  Republicans  "who  invoked  the  power  of 
Congress  to  override  State  action,"  by  which  they 
"Wallace,  Autobiography,  903,  909. 


The  Decision  97 

sustained  those  who  "had  committed  a  grievous  in 
justice." 

Just  two  quotations  from  Commissioners  I  put  in 
evidence  here  for  the  Democrats  upon  this  point. 

Said  Thurman : 

"I  understand  it  to  be  asserted  by  those  who  claim 
the  election  or  the  appointment  of  the  Hayes  electors, 
that  the  governor's  certificate  is  not  conclusive  unless 
made  in  accordance  with  the  decision  of  the  can 
vassing  board;  *  *  *  This  raises  the  question 
whether  the  decision  of  that  board  can  be  impeached. 
I  maintain  that  it  can.  *  *  *  It  will  be  found  suf 
ficient  for  the  decision  of  this  case  that  it  is  impeached 
for  want  of  jurisdiction  in  the  board  to  do  that  which 
it  did;  and  the  effect  of  which  was  to  change  the 
apparent  result  of  the  election.  *  *  * 

"Now,  upon  the  county  returns  it  is  not  denied,  and, 
indeed,  appears  by  evidence  already  before  us  and  not 
contradicted  that  the  Tilden  electors  received  a  ma 
jority  of  the  votes  of  the  people  of  Florida;  and  it 
also  appears  that  it  was  by  throwing  out  the  votes  of 
certain  polls  or  precincts  that  an  apparent  majority 
was  shown  for  the  Hayes  electors.  Had  the  canvassing 
board  of  Florida  any  authority  to  throw  out  those 
votes?  This  question  has  been  decided  by  the  highest 
judicial  tribunal  of  that  State,  interpreting  the  statute 
creating  that  board  and  defining  its  powers.  *  *  * 
It  is  perfectly  conclusive  of  the  meaning  of  the  statute, 
as  much  so  as  if  it  were  written  in  the  statute  in  so 
many  words.  It  follows  then  that  if  we  are  to  respect 
the  statute  of  Florida,  which  everybody  admits  must 
govern  the  case,  the  canvassing  board,  in  throwing 
out  the  votes  for  the  Tilden  electors  and  thereby  giv- 


98  The  Hayes-Tilden  Contest 

ing  an  apparent  majority  for  the  Hayes  electors,  acted 
without  jurisdiction,  and  their  act  was,  therefore, 
absolutely  null  and  void."  12 

Commissioner  Abbott,  a  Representative  from  Massa 
chusetts,  in  concurring  with  the  other  Democrats  said: 

"Let  me  not  be  misunderstood.  It  is  claimed  by  the 
Senator  from  Indiana  and  those  agreeing  with  him, 
that  the  doctrine  of  State  rights  bars  the  way  to  any 
inquiry  into  the  question  whether  the  persons  from  any 
State  claiming  to  cast  its  vote  are  the  true  electors  and 
compels  Congress  to  confine  itself  merely  to  counting. 
I  have  always  been  a  true  and  faithful  disciple  of  the 
great  doctrine  of  State  rights.  I  have  always  believed 
in  it,  and  always  expect  and  hope  to  remain  steadfast 
in  my  faith.  From  day  to  day  I  am  more  assured 
that  there  is  no  way  known  to  man  by  which  our  govern 
ment  can  be  preserved,  except  by  the  strictest  and 
firmest  maintenance  of  all  the  rights  of  the  State.  I 
yield  to  no  man  in  my  fidelity  to  the  doctrine  of  State 
rights,  but  I  am  not  willing  to  carry  it  to  the  extent 
of  doing  in  its  name  the  greatest  wrongs  to  the  States, 
instead  of  upholding  their  rights.  There  never  was  a 
clearer  case  of  'stealing  the  livery  of  the  court  of 
Heaven  to  serve  the  devil  in,'  than  in  thus  attempting 
to  wrest  the  doctrine  of  State  rights  to  excuse  and 
justify  this  great  wrong  to  States.  *  *  * 

"I  submit  that  there  is  no  ground,"  he  continues, 
"upon  which  the  votes  of  the  Hayes  electors  can  be 
counted.  They  were,  in  fact,  never  elected.  To  count 
their  votes  would  be  to  set  aside  the  judgment  of  the 
supreme  court,  the  legislature,  and  the  governor  of 
the  State  of  Florida;  it  would  be  to  give  to  the 

12  Proceedings,    834. 


The  Decision  99 

certificate  of  two  ministerial  officers,  made  by  law 
merely  prima  facie  evidence,  a  power  and  effect  and 
conclusiveness  not  given  to  the  judgments  of  the  highest 
courts  of  law;  a  result  never  before  heard  of  in  the  ad 
ministration  of  justice.  To  count  those  votes  would  be 
to  declare  elected  to  the  high  office  of  President  a  per 
son  who  never  received  the  votes  of  the  people  as 
required  by  the  Constitution,  but  whose  title  would 
depend  simply  on  the  illegal,  fraudulent  action  of  two 
State  canvassers  in  Florida.  If  it  were  intended  to 
encourage  fraud  and  to  show  that  there  was  no  way 
known  to  the  law  to  prevent  its  perpetration,  no  bet 
ter  way  to  do  it  could  be  devised."  13 

Thus  reasoned  and  even  pleaded  all  the  Democrats.14 

"Ib.   934,   938. 

"Proceedings:  Field,  977;  Hunton,  906;  Bayard,  873;  Clif 
ford,  1056.  Payne  did  not  leave  any  written  argument  in  the 
Florida  case,  but  he  voted  with  his  brother  Democrats,  and  all  the 
way  through  the  proceedings  took  an  active  part. 


VI. 

The  Executive  Authority  of  Florida. 

NO  objection,  it  will  be  remembered,  to  count 
ing  the  votes  of  the  Tilden  men  was  based 
upon  any  charge  of  fraud.  The  point  raised 
by  the  Republicans  against  the  Tilden 
electors  was  that  their  /'certificates  or  papers  were  not 
authenticated  according  to  the  Constitution  and  laws 
of  the  United  States ;"/  that  is,  they  alleged  that  the 
certificate  of  their  electoral  votes  .sent  to  the  president 
of  the  Senate  by  the  Tilden  men,  "was  not  accom 
panied  by  any  certificate  of  the  executive  authority  of 
the  State  of  Florida."  This  objection  was  based  upon 
the  Federal  law  of  March  i,  1792,  which  required  "the 
executive  authority  of  each  State  to  cause  three  lists 
of  the  names  of  the  electors  of  such  State,  to  be  made 
and  certified  and  to  be  delivered  to  the  electors ;"  one 
of  these  was  to  be  annexed  to  each  of  the  three  cer 
tificates  of  their  votes.1  As  we  have  seen,  the  cer 
tificate  of  the  votes  cast  by  the  Tilden  men  was  ac 
companied,  in  the  first  instance,  by  the  certificate  of 
the  attorney-general  of  Florida,  certifying  to  their 

1  On  page  733  of  the  Proceedings,  Ashbel  Green,  of  counsel 
for  the  Democrats,  omits  the  word  "authority''  when  attempt 
ing  to  give  the  law  of  1792.  A  glance  at  the  original  act,  1 
Statutes  at  Large,  239,  240,  shows  the  omission  to  be  an  error. 
As  seen  by  the  quotation  from  the  Revised  Statutes,  given,  for 
instance,  by  Mr.  Justice  Field  on  page  979  of  the  Proceedings, 
the  word  "authority"  was  omitted  in  copying  the  language  of 
the  law  of  1792.  No  one,  it  seems,  compared  the  words  of  the 
compiled  work  with  the  original  act,  and  so  the  full  force  of 
the  law  as  undoubtedly  meant  by  those  who  provided  it,  was 
lost,  though,  of  course,  in  the  Revised  Statutes  the  word 
"authority"  is  clearly  implied. 

100 


Executive  Author!  ty  101 

election.  In  the  second  place,  the  Tilden  men  presented 
themselves  with  a  certificate  of  the  governor,  the  suc 
cessor  of  Gov.  Stearns,  certifying  to  their  election  as 
fully  as  the  law  required,  but  the  Republicans  objected 
to  the  competency  of  this,  first,  because  they  alleged 
that  Gov.  Stearns'  certificate  was  "in  all  respects  regu 
lar  and  valid  and  sufficient  under  the  Constitution  and 
laws  of  the  United  States,"  and  showed  that  no  other 
person  or  persons  than  the  Hayes  men  were  duly  ap 
pointed  to  cast  the  electoral  vote  of  Florida;  and, 
second,  also  because  they  alleged  that  the  governor's 
certificate,  made  after  the  day  on  which  the  electors 
were  to  vote,  "and  the  proceedings  as  recited  there 
in  as  certifying  the  qualifications  of  the  Tilden  men, 
are  ex  post  facto  and  retroactive." 

We  shall  first  examine  the  objection  based  upon  the 
claim  that  the  Tilden  men  had  no  "certificate  of  the 
executive  authority  of  the  State  of  Florida,"  in  its 
application  to  the  certificate  of  the  attorney-general. 

What  constituted  "the  executive  authority  of  the 
State  of  Florida?" 

It  seems  generally  to  have  been  taken  for  granted 
by  both  the  Commission  and  the  counsel  that  the  gov 
ernor  constituted  the  sole  executive  officer  of  Florida. 
Neither  the  law  of  March  i,  1792,  upon  which  the  Re 
publicans  relied,  nor  any  other  Federal  law,  attempted 
to  define  the  executive  authority  of  any  State.  And  it 
will  be  noticed  that  the  Republicans  insisted  that  the 
Federal  law  and  Constitution  were  the  sources  upon 
which  they  based  their  objections  to  the  sufficiency  of 
the  Tilden  certificates, — "upon  the  ground  that  the  said 
certificates  or  papers  are  not  authenticated  according 
to  the  requirements  of  the  Constitution  and  laws  of  the 


102  The  Hayes-Tilden  Contest 

United  States,  so  as  to  entitle  them  to  be  received  or 
read,  or  votes  stated  therein,  or  any  of  them,  to  be 
counted,  in  the  election  of  President  of  the  United 
States." z  Who  should  exercise  "the  executive  au 
thority  of  Florida"  or  where  it  should  be  vested,  was 
left  to  be  determined  and  denned  by  the  local  consti 
tution  and  laws  of  the  State.  The  Constitution  and 
laws  of  the  United  States  merely  assigned  the  duty 
of  certifying  or  causing  to  be  certified  the  election  of  the 
electors,  and  that  such  certificates,  three  in  number, 
should  be  delivered  to  each  elector,  by  the  "executive 
authority,"  leaving  the  State  to  determine  by  whom  and 
how  that  authority  should  be  exercised. 

The  Florida  constitution  of  1868  was  the  fundamental 
law  of  that  State  at  the  November  election  and  during 
the  sitting  of  the  Commission.  It  defines  the  executive 
authority.  Art.  VI.,  section  I,  declares  that  the  "su 
preme  executive  power  shall  be  vested  in  a  chief  magis 
trate  who  shall  be  styled  the  governor  of  Florida." 
This  wording  suggests  the  division  of  executive  author 
ity  that  we  actually  find  in  the  constitution.  We  find 
that  power  vested  in  different  officers',  which,  of 
course,  have  different  duties,  all  indicated  by  the  con 
stitution  and  the  laws  pursuant  thereto.  Notice  the 
language  of  the  Federal  Constitution :  "The  executive 
power  shall  be  vested  in  a  President  of  the  United 
States."  In  the  Federal  instrument  the  executive  au 
thority  is  lodged  with  one  officer;  in  the  Florida  in 
strument  that  power  is  distributed,  being  vested  in  more 
than  one  officer.  Each  instrument  defines  the  nature 
and  extent  of  the  power.  Section  17  of  this  Art.  VI. 
of  the  constitution  of  Florida,  which  defines  the  "execu- 

3  Proceedings,   26. 


Executive  Authority  103 

tive  department,"  says :  "The  governor  shall  be  as 
sisted  by  a  cabinet  of  administrative  officers,  con 
sisting  of  a  secretary  of  State,  attorney-general,  comp 
troller,  treasurer,  surveyor-general,  superintendant  of 
public  instruction,  adjutant-general,  and  commissioner 
of  immigration."  Art.  VIII.  reiterates  these  executive 
officers,  and  concludes  by  saying  that  they  "shall  assist 
the  governor  in  the  performance  of  his  duties."  3 

What  were  the  governor's  duties?  What  were  the 
duties  of  the  attorney-general?  The  United  States  law 
said  that  the  "executive  authority"  should  "cause  three 
lists  of  the  names  of  the  electors  to  be  delivered"  to 
them ;  that  is,  the  governor,  as  executive  authority, 
should  see  that  the  electors  received — not  necessarily 
from  his  own  hand  or  under  his  own  signature — the 
evidence  of  their  election;  and  this  they  were  required 
to  transmit  along  with  the  lists  of  their  votes  as  evi 
dence  to  the  Federal  counting  power  of  authenticity 
and  authority.  Whatever  means  the  State  had  pro 
vided  for  the  authentication  of  the  votes,  it  was  the 
governor's  duty  to  have  furnished.  Said  Judge  Miller, 
one  of  the  ablest  of  the  Republican  members : 

"It  is  manifestly  the  duty,  and  therefore  the  right, 
of  the  State,  which  is  the  appointing  power,  to  decide 
upon  the  means  by  which  the  act  of  appointment  shall 
be  authenticated  and  certified  to  the  counting  power 
and  to  the  electors  who  are  to  act  on  that  authority. 
To  this  proposition  I  have  heard  no  dissent  from  any 
quarter.  This  evidence  of  appointment  must  in  its  very 
nature  vary  according  to  the  manner  in  which  the 
electors  are  appointed.  If  elected  by  the  legislature,  as 
they  may  be,  an  appropriate  mode  would  be  the  signa- 

3  Poore,   Charters  and  Constitutions,   351,   355. 


104  The  Hayes-Tilden  Contest 

tures  of  the  presiding  officers  of  the  two  Houses  to  the 
fact  of  such  appointment,  or  a  certified  copy  of  the  act 
by  which  they  were  elected.  If  appointed  by  the 
governor  his  official  certificate  with  the  seal  of  the 
State  would  be  an  appropriate  mode.  If  elected  by 
popular  suffrage,  that  election  should  be  ascertained 
and  authenticated  in  the  mode  which  the  law  of  the 
State  prescribed  for  that  purpose."  * 

The  attorney-general,  by  the  act  of  the  legislature 
approved  February  27,  1872,  the  law  under  which  the 
election  of  November  7,  1876,  was  held,  was  made  a 
member  of  the  State  canvassing  board.  Section  four 
says : 

"On  the  thirty-fifth  day  after  holding  any  general  or 
special  election  for  any  State  officer,  member  of  the 
legislature  or  Representative  in  Congress,  or  sooner  if  the 
returns  shall  have  been  received  from  the  several  coun 
ties  wherein  elections  shall  have  been  held,  the  secre 
tary  of  State,  attorney-general,  and  comptroller  of  pub 
lic  accounts,  or  any  two  of  them,  shall  meet  at  the 
office  of  the  secretary  of  State  pursuant  to  notice  to  be 
given  by  the  secretary  of  State,  and  form  a  board  of 
State  canvassers,  and  proceed  to  canvass  the  returns 
of  said  election,  and  determine  and  declare  who  shall 
have  been  elected  to  any  such  office,  or  any  such  mem 
ber,  as  shown  by  said  returns."  B 

One  branch  of  the  executive  authority,  therefore, 
ascertained  who  had  been  elected ;  it  was  the  governor's 
duty  to  see  that  a  certificate  of  the  result  shown  by 
the  returns  reach  the  electors.  If  he  made  the  certificate 
himself  as  the  Florida  act  of  Aug.  6,  1868,  had  au- 

*  Proceedings,    1010. 

8  Laws  of  Fla.,  1872,  p.   19. 


Executive  Authority  105 

thorized,  he  could  only  base  it  upon  the  information 
furnished  by  the  canvassing  board.  His  information 
was  secondary,  while  that  of  every  member  of  the 
State  canvassing  board  as  to  the  men  shown  by  the 
returns  before  them  to  have  been  elected  was  primary 
and  direct.  For  this  reason,  among  others,  the  Re 
publicans  admitted  that  it  was  proper  to  go  behind 
Governor  Stearns'  certificate  and  see  upon  what  facts, 
if  any,  he  had  based  it.  "If  a  certificate  is  based  on 
anything  else  than  the  legal  evidence,  it  is  without  legal 
validity,  and  that  without  regard  to  whether  fraudu 
lently,  ignorantly,  or  a  mere  casus  omissus,"*  was  the 
admittedly  applicable  rule  for  testing  the  certificate  of 
the  governor.  Said  Stoughton,  of  counsel  for  the 
Republicans,  the  distinguished  New  York  lawyer: 
"Undoubtedly,  upon  questions  of  forgery,  upon  ques 
tions  of  mistake,  upon  many  questions,  this  tribunal 
could  deal"  with  "the  governor's  certificate."7  Said 
Bradley,  "the  fifteenth  man:"  "I  consider  the  gov 
ernor's  certificate  of  the  result  of  the  canvass  as 
prima  facie  evidence  of  that  fact,  but  subject  to  exam 
ination  and  contradiction."8  And  again:  "While  it 
must  he  held  as  a  document  of  high  nature,  not  to  be 
lightly  questioned,  it  seems  to  me  that  a  State  ought 
not  to  be  deprived  of  its  vote  by  a  clear  mistake  of  fact 
inadvertently  contained  in  the  governor's  certificate, 
or  (if  such  case  may  be  supposed)  by  a  wilfully  false 
statement.  It  has  not  the  full  sanctity  which  belongs 
to  a  court  of  record,  or  which,  in  my  judgment,  be- 

8  2  Ells,  433,  Chester  H.  Rowell,  Dig.  Contested  Elec.  Cases, 
660. 

7  Proceedings,  112. 
«Ib.  1030. 


io6  The  Hayes-Tilden  Contest 

longs  to  the  proceedings  and  recorded  acts  of  the  final 
board  of  canvassers."9  And  Republican  Commissioner 
Strong:  "I  admit  that  the  governor's  certificate  is  not 
unimpeachable."  10 

In  1868  the  supreme  court  of  Florida,  in  State  vs. 
Gleason,  said: 

"The  attorney-general  is  the  legal  guardian  of  the 
people  *  *  *  his  duties  pertain  to  the  executive 
department  of  the  State,  and  it  is  his  duty  to  use 
means  most  effectual  to  the  enforcement  of  the  laws, 
and  the  protection  of  the  people,  whenever  directed  by 
the  proper  authority,  or  when  occasion  arises."1  And 
the  attorney-general,  conscious  of  his  high  duties, 
himself  recognized  that  he  was  part  of  the  executive 
authority  of  his  State.12 

Under  the  laws  of  his  State,  which  defined  the 
duties  of  all  officers  thereof,  the  attorney-general  could 
not  have  refused  to  give  his  certificate  without 
perjuring  himself.  His  knowledge  of  the  facts  and  his 
view  of  the  law  gave  the  occasion  indicated  by  the 
supreme  court  when  it  declared  that  the  duty  of  the 
attorney-general  was  "to  use  means  most  effectual  to 
the  enforcement  of  the  laws,  and  the  protection  of  the 
people." 

Now,  since  the  attorney-general  was  by  the  con 
stitution  and  law  a  part  of  the  executive  authority  of 
Florida,  and  had  been  so  recognized  by  the  courts  long 
before  1876;  and  since  it  was  a  part  of  his  executive 
duty  to  know  of  his  own  inspection  and  count  of  the 

9Ib.  1023. 

10  Ib.  998. 

«12  Fla.  190,  212. 

18  Sen.  Rep.  611,  Evidence,  35:  44  Cong.,  2nd  sess. 


Executive  Author!  ty  107 

returns  who  had  been  elected,  I  submit  two  conclu 
sions  follow:  i.  The  attorney-general's  certificate  was 
from  and  by  the  executive  authority  of  Florida;  2.  Be 
ing  executive  authority  and  issued  upon  direct  and 
primary  information  as  to  what  the  returns  showed,  and 
issued  in  discharge  of  a  legal  duty,  issued  for  the  pro 
tection  of  the  people  and  for  the  maintenance  of  the 
majority  voice  of  the  voters  of  the  State,  it  was  suf 
ficient  to  indicate  that  Governor  Stearns'  certificate 
was  based  upon  something  that  was  either  a  fraud  or 
a  usurpation  or  a  mistake.  Its  least  proper  weight 
necessitated  the  admission  of  evidence  excluded  from 
the  record  upon  which  the  Republicans  left  their  de 
cision;  being  the  certificate  of  the  executive  authority 
of  Florida,  it  was,  under  the  State  law  and  under  the 
Federal  Constitution,  of  no  less  dignity  than  that  of 
the  governor  and  amply  counterbalanced  his  authentica 
tion. 

Upon  the  record,  therefore,  the  objection  that  the 
Tilden  men's  votes  were  not  accompanied  by  any  cer 
tificate  of  the  executive  authority  of  the  State  of 
Florida,  is  without  warrant  in  the  facts  and  wanting 
in  legal  validity.  This  is  the  first  serious  legal  defect 
in  the  majority  decision,  and  affects  the  validity  of  Mr. 
Hayes'  title.  A  study  of  the  facts  in  relation  to  the 
quo  warranto  and  mandamus  actions  will  develop,  I 
submit,  even  graver  legal  errors. 

Before  entering  these  latter  subjects,  to  make  the 
historical  story  complete  we  need  to  notice  a  little 
more  fully  the  result  of  the  inquiry  into  the  eligibility 
of  Humphreys.  He  appeared  in  person  as  a  witness 
before  the  Commission,  admitted  holding  the  office  of 
United  States  shipping-commissioner,  and  stated  that 


io8  The  Hayes-Tilden  Contest 

he  had  resigned  as  such  officer,  and  exhibited  letters 
tending  to  show  that  his  resignation  had  been  accepted 
October  5,  1876,  by  Judge  W.  B.  Woods,  the  judge  of 
the  United  States  circuit  court  for  the  northern  dis 
trict  of  Florida.  It  was  in  this  court  in  open  session 
that  the  appointment  was  made.  The  resignation  had 
been  mailed  to  Judge  Woods  and  received  by  him 
while  visiting  in  Newark,  Ohio,  and  from  the  latter 
point  Judge  Woods  had  written  and  mailed  what  pur 
ported  to  be  an  acceptance  of  the  resignation.  The 
Democrats  claimed  that  this  act  was  not  a  valid  accept 
ance,  but  was  the  act  of  an  individual  and  not  the  act 
of  the  court.  Judge  Woods  admitted  that  he  could 
fill  the  office  only  while  actually  holding  court;  and 
it  was  insisted  that  the  resignation  could  be  accepted 
by  the  court  only  when  in  legal  session.13 

After  the  matter  had  been  fully  considered,  Thur- 
man,  as  mentioned  in  the  preceding  chapter,  offered 
the  resolution :  "That  F.  C.  Humphreys  was  not  a 
United  States  shipping-commissioner  on  the  7th  day 
of  November,  1876."  Then  the  record  says,  "After 
debate,  Mr.  Commissioner  Thurman  withdrew  his 
resolution."  What  the  Democrats  of  the  Commission, 
other  than  Thurman,  thought  as  to  Humphrey's  eligi 
bility  there  is  nothing  in  the  proceedings  to  show. 

That  all  the  Democrats  regarded  Humphreys  as 
eligible,  a  question  entirely  apart  from  whether  or  not 
he  had  been  elected,  I  feel  sure ;  for  the  conclusion  em 
bodied  in  Thurman's  resolution,  in  the  light  of  the 
evidence,  is  at  least  supported  by  the  equity  of  the 
matter.  There  is  important  authority  in  America  that 
an  officer  may  resign  at  pleasure  without  the  assent 

"Proceedings,   186. 


Executive  Authority  109 

of  the  appointing  power,  although  this  doctrine  is 
not  supported  by  perhaps  a  majority  of  cases.  By  the 
acts  of  April  10,  1869,  and  of  March  3,  1871,  the 
power  and  jurisdiction  of  Federal  circuit  judges  are 
limited  to  their  respective  circuits.14  Outside  of  his  dis 
trict  and  in  Ohio,  Judge  Woods  had  no  official  power. 
The  "general  doctrine  is  that  all  judicial  business  must 
be  transacted  in  court,"  and  therefore  the  attorneys 
who  argued  that  the  act  of  Judge  Woods  in  attempting 
to  accept  the  resignation  while  in  Ohio,  was  the  act  of 
an  individual  and  not  that  of  a  judge,  is  supported 
by  good  authority.15  But  Humphreys  had  at  least 
meant  to  resign,  had  ceased  to  use  the  office,  and  had 
in  all  good  faith  become  a  candidate  for  Presidential 
elector.  If  he  were  elected  his  vote  was  properly 
counted,  under  the  circumstances.  The  case  in  its  real 
merits,  in  my  opinion,  rests  on  the  question  as  to  his 
election. 

Had  the  Commission  gone  into  a  hearing  of  the  evi 
dence  that  had  been  gathered  by  the  Congressional 
committee  and  that  the  Democrats  asked  the  Com 
mission  to  consider,  a  far  more  serious  difficulty  would 
have  been  encountered  as  to  the  eligibility  of  another 
one  of  the  Hayes  claimants,  C.  H.  Pearce.  Although 
the  facts  upon  which  it  was  claimed  that  Pearce  was 
ineligible  as  an  elector  were  contained  in  this  report 
and  the  evidence  accompanying  it  made  by  a  com 
mittee,  whose  majority  was  Republican,  sent  out  by 
the  Senate  for  the  purpose  of  gathering  the  facts  con 
cerning  the  electors,  or  those  who  claimed  to  be 
electors,  and  although  this  report  and  its  accompanying 

14  4  Fed.   St.  Anno.,  39,  16  St.  L.  44,  494. 

»19  Am.  &  Eng.  Enc.  Law,  562  s;  4  Enc.  PL  &  Pr.  337. 


no  The  Hayes-Tilden  Contest 

evidence  was  submitted  to  the  Commission  by  Shella- 
barger,  one  of  the  Republican  counsel,  and  had  been 
taken  as  part  of  the  Republican  statement,10  the  facts 
were  never  considered  by  the  Commission, — except  in 
so  far  as  they  were  a  part  of  the  evidence  rejected 
by  the  Republican  majority. 

Before  the  election  Pearce  had  been  convicted  in 
the  Florida  courts  of  felony.  He  had  been  found 
guilty  of  "corruptly  offering  a  sum  of  money  to  a 
legislative  officer  of  the  State  of  Florida," — a  bold  at 
tempt  at  the  most  unpardonable  bribery,  than  which 
few  crimes  are  more  reprehensible. 

He  had,  previous  to  the  election,  been  pardoned,  at 
least  prima  facie;  but  it  was  claimed  that  he  had  not 
been  restored  to  civic  rights,  since  under  the  laws  of 
Florida,  as  is  true  in  other  States,  one  convicted  of 
felony  is  deprived  of  his  right  to  hold  office  or  to  vote.17 
Prior  to  that  time  the  United  States  Supreme  Court  in 
United  States  vs.  Wilson,  7  Peters,  150,  had  held  that 
a  mere  pardon  does  not  restore  to  civic  rights.18 

However,  so  far  as  the  will  of  the  people  of  Florida 
is  concerned,  the  right  or  the  wrong  of  counting  the 
votes  of  these  Republicans,  rests  on  the  fact  of  bona 
fide  appointment  by  the  State. 

16  Proceedings,  53. 

17  Senate    Report    611,    Minority    Report,    13:    44    Cong.,    2nd 
sess;   14  Fla.,   153,  where  Pearce's  case  is  fully  reviewed  by  the 
supreme  court  of  Florida. 

18  See    also    Virginia    supreme    court,    2    Leigh,    724;    and    the 
Illinois  court,   Foreman  et  al  vs.   Baldwin.   24  111.    298. 


VII. 

The  Hayes  Usurpers. 
The  Florida  Quo  Warranto  Proceeding. 

THE  Republican  majority  of  the  Commission 
decided  that  it  was  not  competent  under  the 
Constitution  and  the  law  to  admit  the  "pro 
ceedings  of  the  courts  or  acts  of  the  legisla 
ture  or  of  the  executive  of  Florida  subsequent  to  the 
casting  of  the  votes  of  the  electors  on  the  prescribed 
day"  to  question  "the  determination  and  declaration"  of 
the  board  of  State  canvassers  made  by  that  board 
before  the  day  upon  which  the  electors  were  by  law 
directed  to  perform  their  duty.  The  Democrats  in 
sisted  most  earnestly  upon  both  the  competency  and 
sufficiency  of  this  evidence  thus  ignored.  To  these 
respective  positions,  involving  what  are  known  as  the 
States'  subsequent  acts  regarded  by  the  Commission 
as  aliunde  the  papers  opened  by  the  president  of  the 
Senate  in  the  presence  of  the  two  Houses,  we  now 
direct  our  attention. 

Shellabarger,  eloquent  and  full  of  bold  fire,  made  a 
representative  assault  upon  the  Democratic  position.  He 
insisted:  "Therefore  every  act  of  the  State  in  the 
way  of  exercising  power  must  be  'appointment'  and 
'appointment'  in  the  very  nature  of  the  case  cannot 
follow  the  day  when  the  first  and  the  last  and  the 
only  act  of  the  functionary  must,  by  the  Constitution 
and  the  law,  be  completely  and  forever  discharged.  Is 
it  not  plain,  therefore,  thus  far,  that  it  was  the  design 
of  the  Constitution,  is  the  express  requirement  of  the 
in 


H2  The  Hayes-Tilden  Contest 

Constitution,  that  every  act  of  the  State,  being  all  ap 
pointment  and  appointment  only,  shall  antedate  the 
vote?" 

Commissioner  Thurman,  since  well-known  as  the 
Democratic  Vice-Presidential  candidate,  formerly  chief 
justice  of  the  supreme  court  of  Ohio,  interrupted  with 
a  question  representative  of  the  Democratic  and  what 
is  believed  to  be  the  true  ground :  "Suppose,"  asked 
Senator  Thurman,  "it  be  granted  that  every  act  which 
constitutes  the  appointment  must  be  done  before  the 
day  when  the  electors  cast  their  votes,  does  it  follow 
that  there  can  be  no  inquiry  afterwards  as  to  whether 
there  was  any  appointment  made?" 

"That  is  a  fair  question,"  replied  Attorney  Shella- 
barger.  "It  deserves  a  fair,  frank,  and  square  answer, 
and  I  shall  make  it  as  I  proceed  as  well  as  I  can." 

Watch  his  argument.  Proceeding  with  his  answer, 
he  says:  "If  an  elector  on  the  voting  day  is  endowed 
with  all  the  insignia  of  right,  with  all  the  apparent 
title  of  office  that  can,  according  to  the  then  existing 
State  machinery,  he  held  on  that  day,  he  is,  to  every 
possible  legal  intent,  as  against  the  State,  the  elector 
both  de  facto  and  de  jure.  *  *  *  I  wish  to  state  it 
with  the  utmost  care  about  my  words — when  that  po 
litical  transaction  by  the  State  has  been  discharged  ac 
cording  to  the  requirements  of  the  law  of  the  State 
as  it  existed  upon  the  day  of  voting,  then  the  power 
of  the  State  over  the  subject-matter  is  an  accomplished 
process  of  government  on  the  part  of  the  State,  and 
the  power  of  the  State  over  the  subject-matter  has 
passed  forever  away."1 

Constantly  and  in  every  conceivable  form  this  argu- 

i  Proceedings,  167,  172. 


The  Hayes  Usurpers  113 

ment  was  repeated  by  the  Republicans.     The  argument 
is  a  petitio  principii. 

Had  the  Hayes  men  "insignia  of  right?"  Whether 
the  Hayes  claimants  were  usurpers  or  men  having  "all 
the  insignia  of  right,"  depended  upon  what  the  "ex 
isting  machinery"  made  it  proper  to  be  done  so  as  to 
give  even  "apparent  title  of  office."  The  argument  is 
fatal  in  that  it  ignores  the  "apparent  title  of  office" 
held  "on  the  voting  day"  by  the  Tilden  claimants.  The 
argument  is  erroneous  in  that  it  assumes  that  the 
acts  of  the  Hayes  claimants  and  of  the  pro-Hayes 
canvassing  board  constituted  the  "political  transaction 
by  the  State."  What  were  "the  requirements  of  the 
law  of  the  State  as  it  existed  upon  the  day  of  voting?" 
Certainly  it  is  true  that  if  the  acts  of  the  Hayes  men 
constituted  the  State's  political  transaction,  we  may 
concede  that  then  there  had  been  an  "accomplished 
process  of  government."  But  the  Democrats  insisted 
that  the  acts  of  the  Hayes  claimants  had  not  become 
the  State's  political  transactions;  that  they  were 
usurpers,  and  had  not  acted  according  to  the  require 
ments  of  the  law  of  the  State  as  it  existed  before  and 
on  the  day  of  voting.  The  Democrats  argued  that 
what  the  Hayes  men  claimed  to  be  an  "insignia  of 
right,"  was  null,  void,  and  of  no  force  whatever.  The 
Democrats  based  their  claims,  among  others,  upon 
the  ground  that  the  Constitution  of  the  United  States 
guaranteed  to  each  State  the  common  law  remedy 
known  as  a  writ  in  the  nature  of  a  quo  warranto,  or 
simply  the  quo  warranto,  its  synonymous  equivalent, 
as  we  often  term  the  action;  that  that  action  was  then 
the  law  of  Florida,  and  that  it  had  been  invoked  to 
determine  the  rights  as  between  the  two  sets  of 


ii4  The  Hayes-Tilden  Contest 

electoral  claimants.  They  insisted  that  this  remedy, 
as  to  which  the  rights  of  the  State  under  the  Consti 
tution  remained  unchanged,  belonged  to  ihe  courts  of 
the  State;  that  it  was  applicable  as  between  the  Hayes 
and  Tilden  claimants;  and  that  the  judgment  therein 
not  only  determined  the  rights  of  the  claimants  parties 
thereto,  but  that  that  adjudication  determined  con 
clusively  which  acts,  if  any,  of  those  parties  had  be 
come  and  were  the  acts  of  the  State, — defined  as 
against  the  world  whether  or  not,  and  if  so  wherein, 
there  had  been  a  political  transaction  by  the  State. 
And,  being  definition  and  determination  of  appointment 
preceeding,  might  properly  be  reached  and  announced 
after  the  day  upon  which  electors  were  required  to 
meet  and  to  vote. 

Which  contention  was  correct?  A  satisfactory 
answer  to  this  question  may  be  had  by  determining: 
(i)  What  was  then  the  law  of  QUO  warranto  actions 
as  settled  in  America  in  general  and  in  Florida  in 
particular.  (2)  Having  found  the  law,  by  seeing 
whether  the  Federal  Constitution  denies  to  a  State 
the  right  to  apply  any  part  thereof  to  a  quo  warranto 
proceeding  inquiring  who  had  been  appointed  her 
electors  of  President  and  Vice-President. 

First,  then,  of  the  action  and  its  scope  and  time 
of  judgment. 

A  view  of  the  facts  of  the  case  should  be  clearly 
seen  before  we  examine  the  law.  Judge  Field  cor 
rectly  tells  us  : 

"As  soon  as  it  was  known  that  the  canvassers  had 
certified  to  the  election  of  the  Hayes  electors,  the 
Tilden  electors  filed  an  information  in  the  nature  of 
a  quo  warranto  against  them  in  one  of  the  circuit 


The  Hayes  Usurpers  115 

courts  of  the  State,  to  determine  the  validity  of  their 
respective  claims  to  the  office  of  electors.  This  pro 
ceeding  was  commenced  upon  the  day  on  which  the 
canvass  was  completed,  and  process  was  served  on  the 
Hayes  electors  before  they  had  cast  their  votes.  The 
circuit  court  had  jurisdiction  of  the  proceeding  by  the 
constitution  of  the  State,  the  eighth  section  of  which 
provides  in  terms  that  the  circuit  court  and  the 
judges  thereof  shall  have  power  to  issue  writs  of 
quo  warranto.  In  the  information  the  Tilden  electors 
alleged  that  they  were  lawfully  elected  to  the  office  of 
electors,  and  that  the  Hayes  electors  were  not  thus 
elected,  but  were  usurpers.  The  Hayes  electors  ap 
peared  to  the  writ,  and,  first  upon  demurrer,  and  after 
wards  upon  an  investigation  of  the  facts,  their  right 
to  act  as  electors  was  determined.  And  it  was  adjudged 
that  the  Hayes  electors  were  never  appointed,  and 
were  never  entitled  to  assume  and  exercise  the  func 
tions  of  that  office,  and  were  usurpers;  but  that  the 
Tilden  electors  were  duly  appointed  at  the  election  on 
the  7th  of  November,  and  were  entitled  on  the  6th 
of  December  to  receive  certificates  of  election,  and 
on  that  day  and  ever  since,  to  exercise  the  powers  and 
perform  the  duties  of  that  office." 

The  writ,  let  the  reader  remember,  for  it  is  im 
portant  in  a  legal  aspect,  was  served  upon  the  Hayes 
men  before  their  vote,  but  after  they  had  attempted 
to  exercise  the  functions  of  the  office  of  electors.  They 
appeared  to  the  writ,  and  the  questions  raised  were 
fought  before  the  courts  until  final  judgment  by  the 
supreme  court  of  the  State,  which  was  rendered  before 
the  Federal  count.  The  best  obtainable  local  and 
visiting  counsel  appeared  in  the  case.  General  Lew 


ii6  The  Hayes-Tilden  Contest 

Wallace,  as  the  special  counsel  for  the  National  Re 
publican  committee,  led  the  fight  for  the  Republicans, 
appearing  personally  in  the  case  both  before  the  cir 
cuit  court  and  before  the  supreme  court,  as  he  after 
ward  stated  under  oath.2 

Upon  these  facts  Judge  Field,  in  common  with  the 
other  Democrats  on  the  Commission,  concluded:  "That 
action  seems  to  me  to  be  conclusive  of  the  case,  *  *  * 
especially  when  considered  in  connection  with  the  ac 
tion  of  the  legislature  of  the  State."3 

With  splendid  logic  Bayard  argued:  "There  can 
be  no  doubt  that  under  the  constitution  and  laws  of 
Florida  the  court  had  jurisdiction,  had  the  parties  be 
fore  it,  and  entered  judgment  in  accordance  with  the 
law  and  the  facts.  This  proceeding  was  commenced 
on  the  day  on  which  both  sets  of  electors  assumed  to 
act,  on  which  day  the  board  of  canvassers  rendered  a 
decision  which  was  declared  by  the  courts  to  be  erro 
neous  and  fraudulent,  but  which  did  not  prevent  the 
true  electors  from  acting  upon  the  fact  of  their  elec 
tion  and  casting  the  votes  according  to  the  Constitu 
tion  and  the  laws  of  the  United  States.  There  was 
in  this  case  no  retroactive  force  of  law.  The  fact  had 
been  determined  on  the  7th  of  November,  1876,  by  the 
citizens  of  Florida  at  the  polls,  who  were  the  elec 
tors  ;  the  function  of  electors  was  discharged  by  those 
whom  that  election  has  proven  to  have  been  elected 
on  the  6th  day  of  December.  It  is  no  case,  as  has 
been  suggested,  of  reconsideration  by  the  tribunals  and 
legislature  of  a  State,  changing  the  result  of  an  elec 
tion;  it  is  no  question  of  violation  of  the  requirements 

*Ho.  Miscl.  Doc.  No.  31,  p.  516:  45  Cong.,  3rd  sess. 
3  Proceedings,  983. 


The  Hayes  Usurpers  117 

of  the  Constitution  that  the  votes  should  all  be  cast 
on  the  same  day  through  the  United  States.  The 
votes  were  cast  on  the  day  named  by  the  act  of  Con 
gress,  and  shall  it  be  because  some  false  votes  were 
cast  by  pretended  electors  on  the  same  day  that  the 
true  votes  were  cast  by  the  real  electors,  that,  there 
fore,  the  action  of  the  latter  is  to  be  nugatory?  There 
is  no  want  of  performance  of  every  constitutional  and 
legal  requirement  by  Call  and  his  three  associates,  the 
Tilden  electors.  -By  the  judgment  of  the  courts  of 
Florida  the  fact  is  conclusively  fastened  upon  the 
knowledge  of  this  tribunal,  and  its  effect  is  binding 
upon  them,  that  on  the  7th  day  of  November,  1876, 
Wilkinson  Call  and  his  three  associates  were  duly 
and  truly  chosen,  in  the  manner  prescribed  by  the 
legislature  of  the  State  of  Florida,  electors  for  Pres 
ident  and  Vice- President,  and  that  on  December  6, 
1876,  they  lawfully  performed  the  functions  of  their 
said  office,  which  they  certified  duly  to  the  two  Houses 
of  Congress." 

Upon  these  facts,  then,  let  us  find  the  laws  govern 
ing  quo  zvarranto  in  its  application  to  electors  of  Pres 
ident  and  Vice-President. 

The  writ  of  quo  warranto  comes  to  us  through  the 
common  law  from  England.  It  originated  in  1198, 
during  the  reign  of  Richard  I.  In  the  course  of  time 
the  procedure  underwent  some  change  and  came  to 
be  known  as  "the  information  in  the  nature  of  a  quo 
warranto."  This  latter  is  the  form  of  the  writ  now 
used  in  England  and  in  the  States  of  the  United  States. 
In  America  "quo  warranto"  and  "writ  in  the  nature 
of  a  quo  warranto,"  are  used  as  "synonymous  and 
convertible,  the  object  and  end  of  each  being  sub- 


ii8  The  Hayes-Tilden  Contest 

stantially  the  same."*  This  construction  was  held  in 
terms  by  the  Florida  court  at  least  as  early  as  i868.s 
The  purpose  of  the  action  is  to  correct  the  "usurpa 
tion  of  a  public  office  or  corporate  franchise  by  try 
ing  the  right  and  ousting  the  usurper." 8  As  High, 
a  well-known  legal  authority,  tells  us,  this  procedure 
is  "employed  to  test  the  actual  right  to  an  office  or 
franchise."7  Its  purpose  is  not  to  correct  wrongs  by 
an  officer,  or  one  who  claims  to  be  an  officer,  nor  is 
it  applicable  "where  a  public  officer  threatens  to  exer 
cise  power  not  conferred  upon  him  by  law."  There 
must  be  some  use  of  the  function  or  right  claimed, 
before  the  grounds  upon  which  the  writ  can  be  in 
voked  shall  have  been  complete.  In  such  cases,  as 
expressed  by  one  of  our  latest  standard  authorities, 
the  action  lies  "either  where  a  person  has  usurped  an 
office,  a  franchise,  or  a  liberty,  or  where,  having  had 
such  office  or  franchise  he  has  by  non-user  or  abuse 
forfeited  it."8 

In  Florida,  as  well  as  Arkansas,  California,  Connect- 
cut,  Dakotas,  Georgia,  Illinois,  Indiana,  Kansas,  Ken 
tucky,  Maine,  Massachusetts,  Michigan,  Mississippi, 
Montana,  Nevada,  New  Hampshire,  New  Jersey,  New 
York,  North  Carolina,  Ohio,  Pennsylvania,  Rhode  Is- 
and,  South  Carolina,  Texas,  Virginia,  and  England, 
there  are  scores  of  unbroken  decisions  establishing 
beyond  dispute  that  a  quo  warranto  or  "an  information 

«  17   Enc.   PI.  and   Prac.   383. 

8  State  vs.   Gleason,    12    Fla.,   190,   208. 

6  Com.  vs.  Murray,  11  S.  &  R.  (Pa.),  73;  14  Am.  Dec.,  614; 
State  vs.  Portland,  &c.,  58  N.  H.,  113. 

7  Ext.  Legal  Rem.,  2nd  ed.,  sec.   618. 

8  17    Enc.    PI.    &   Pr.,    393;    Atty.-Gen.   vs.    Salem,    103    Mass., 
139;   People  vs.  Bristol,   23   Wend.    (N.    *.),   223. 


The  Hayes  Usurpers  119 

in  the  nature  thereof,  is  the  proper  remedy  to  try  the 
title  to  a  public  office  against  one  who  usurps  the 
same  and  to  oust  the  usurper."9  This  action  "lies 
against  a  person  claiming  an  office  under  a  commission 
from  the  governor,"  no  less  than  in  cases  where  the 
authority  under  which  the  office  is  held  comes  directly 
from  the  people.10 

There  can,  therefore,  be  no  question  that  the  pro 
ceeding  in  the  nature  of  a  quo  warranto,  which  was 
employed  to  test  the  question  of  title  as  between  the 
Tilden  and  Hayes  claimants,  was  the  correct  remedy. 
It  not  only  belonged  to  the  common  law11  and  became 
the  common  heritage  of  the  American  States,  but  it 
belonged  to  the  courts  of  Florida  by  specific  authority 
of  her  constitution,  and  had  been  long  the  machinery 
recognized  by  the  legislature  and  courts  for  the  very 
purposes  for  which  it  had  been  created  and  so  long 
preserved.  Long  before  the  Hayes-Tilden  contest  the 
courts  of  Florida  had  resorted  to  the  remedy  for  the 
correction  of  wrongs  similar  to  those  charged  in  the 
case  before  us.  In  1868  the  supreme  court  in  the  case 
of  the  State  vs.  Gleason  held  that  a  proceeding  in  the 
nature  of  a  quo  warranto  was  the  only  remedy  known 
either  to  the  common  or  statute  law  of  the  State  for 
correcting  the  usurpation  of  a  public  office.12  The 
court  said:  "Our  legislature  has  not  seen  fit  to  make 
any  change  in  the  common  law  rule."  13  In  1873  again 

9  17   Enc.  PI.   &  Pr.,   398;  Ames  vs.  Kansas,   111  U.   S.   449, 
cited    in    Foster    vs.    Kansas,    112    U.    S.    206;    Sparf   vs.    U.    S. 
156   U.   S.   129;   Bachman  vs.   State,   34   Fla.    57. 

10  17    Enc.   PI.   &  Pr.,   399. 
"3  Bla.  Com.  263. 

"12  Fla.,  190,  211. 
13  Ib.    213. 


120  The  Hayes-Tilden  Contest 

the  supreme  court  of  Florida  in  Robinson  vs.  Jones, 
announcing  the  rule,  said:  "The  effect  of  the  State 
Code  is  simply  to  affirm  and  to  continue  the  common 
law  rule  as  to  the  right  of  action,  at  the  same  time 
authorizing  that  right  of  action  to  be  asserted  through 
the  instrumentality  of  a  civil  action  under  its  pro 
visions.  We  have  heretofore  held  that  the  Code  does 
not  in  such  a  case  as  this  exclude  or  abolish  the  remedy 
by  information  (in  the  nature  of  a  quo  warranto.)" 
The  rule  in  this  respect  thus  laid  down  is  the  settled 
law  of  Florida.14 

It  is  not  a  little  strange,  therefore,  in  the  light  of  the 
quo  warranto  law  as  universally  applied  in  America 
and  as  it  had  been  so  long  settled  in  Florida,  that 
we  find  some  of  the  Republicans  of  the  Commission, 
especially  Judge  Miller,  insisting  that  this  proceeding 
was  not,  at  any  time  in  this  case,  the  proper  remedy.15 
While  some  of  them  admitted  the  remedy,  had  the 
judgment  been  rendered — a  physical  impossibility  under 
the  circumstances — before  the  claimants  to  the  right 
of  electorship  had  cast,  sealed,  and  despatched  their 
votes,  all  of  the  Republicans  united  in  insisting  that 
the  fact  that  the  quo  warranto  judgment  was  not 
reached  by  the  court  until  several  days  after  the 
claimant-electors  had  exercised  the  functions  which 
they  claimed  to  be  rightfully  theirs,  rendered  the  judg 
ment  entirely  without  validity.  It  is  probable  that  this 
contention  that  the  judgment  was  void  because  it  was 
"a  post  hack  decision,"  as  they  called  it,  had  more 
weight  than  any  other  at  the  time  in  leading  the  public 

"Robinson  vs.  Jones,  14  Fla.  256;  State  vs.  Gleason,  12  Fla. 
190;  State  vs.  Jones,  16  Fla.  306;  State  vs.  Anderson,  26  Fla. 
240. 

18  Proceedings,  999,  1008,  1024. 


The  Hayes  Usurpers  121 

to  accept  the  decision  of  the  Commission  as  founded 
upon  some  show  of  legal  right;  yet  this  contention  has 
no  more  foundation  in  law  than  the  assertion  that 
Hayes  received  a  majority  of  the  popular  votes  in 
Florida  at  the  election,  had  in  truth. 

The  right  to  proceed  to  judgment  after  the  expira 
tion  of  the  office  and  after  the  time  when  the  functions 
of  the  office  either  have  been  or  should  have  been 
exercised,  always  obtains  where  there  is  some  sub 
stantial  right  to  be  subserved  by  such  a  judgment. 
Than  this  no  principle  in  America  is  more  correctly 
or  more  firmly  settled.10 

Until  the  electoral  votes  of  a  State  have  been  counted 
by  the  Federal  counting  power,  the  State  yet  has  a 
right  in  fieri :  the  substantial  right  to  have  her  bona  fide 
authoritative  votes  counted. 

Now  the  quo  warranto  proceeding  as  applied  in  this 
case  by  Florida,  the  final  determinant  procedure  under 
her  law  in  appointing  her  electors,  was  "to  obtain  a 
judicial  declaration  and  enforcement  of  existing  rights, 
not  to  create  or  destroy  them."  This  is,  let  us  not 
forget,  the  prime  purpose  of  the  action,  as  it  has  been 
since  its  origin.17  The  quo  warranto  determined  the 
question:  ''Which  was  the  political  action  of  the  State?" 
It  did  not  revoke  any  act  of  electors',  it  did  not  at 
tempt  to  do  so ;  it  ascertained  whether  there  had  been 
an  act  of  the  State.  As  pointed  out  by  Commissioner 
Hunton : 

"Although   the   electors  had  voted  before   the  judg- 

18  17  Enc.  PI.  &  Pr.,  485;  Com.  vs.  Swasey,  133  Mass.  540; 
Dean  vs.  Miller  (Neb.  1898),  76  N.  W.  Rep.  555;  People  vs. 
Rogers,  118  Cal.  394;  State  vs.  Pierce,  35  Wis.  101. 

"19  Am.   Eng.   Enc.  Law,   663. 


122  The  Hayes-Tilden  Contest 

ment  in  quo  warranto,  yet  that  judgment  was  rendered 
in  time  to  instruct  us  on  the  point  which  we  are  to 
decide  and  determine,  which  set  of  electors  has  been 
duly  appointed."18  The  judgment  determined  which 
set  of  votes  the  State  had  the  right  to  have  counted. 

In  other  words,  the  judgment  was  rendered  in  time  to 
oust  a  fraudulent  claim  on  the  one  hand,  and  on  the 
other  to  give  a  "judicial  declaration  of  an  existing 
right" — the  right  of  Florida  to  be  represented  by  the 
Tilden  electors,  a  right  created  by  the  ballot  on  No 
vember  7,  1876,  and  which,  at  the  rendition  of  the  judg 
ment,  was  yet  to  be  made  known  to  the  Federal  count 
ing  power. 

The  acts  involved,  therefore,  in  the  quo  warranto 
proceedings  were  of  the  very  highest  public  nature, 
and  were  yet  potential.  In  such  cases  the  law  of 
Florida,  and  in  America  generally,  in  all  cases  of  pub 
lic  servants,  the  elector  being  no  exception,  makes 
applicable  the  quo  warranto  even  where  the  term  of 
the  office  has  expired.  This  is  especially  true  where,  as 
in  the  Florida  Case,  the  application  for  the  writ  is 
made  at  the  earliest  possible  opportunity,  the  action 
being  necessary  to  determine  the  validity  of  the  acts 
of  which  the  relators  complain. 

The  certainty  of  the  grounds  of  the  writ  is  heightened 
where  the  acts  of  which  complaint  is  made  are  in 
tended  to  confer  rights  upon  others.  The  acts  of  the 
Republican  claimants  in  attempting  to  cast  the  electoral 
vote  of  Florida  were  intended  to  confer  upon  Hayes 
the  right  to  the  Presidency  of  the  United  States.  At 
the  time  of  the  court's  judgment  he  had  not  been  in 
vested  with  that  high  right:  the  Tilden  men  in  the 

18  Proceedings,    906. 


The  Hayes  Usurpers  123 

quo  warrant o  arrested  it  at  its  source ;  the  court,  at 
their  instance,  held  up  the  cloak  and  exposed  to  view 
the  fraud  for  the  information  of  the  Federal  counting 
power.  The  mischief  of  which  the  Tilden  men  com 
plained  had  not  been  consummated  when  the  quo  zvar- 
ranto  judgment  was  handed  from  the  bench;  it  was 
arrested  in  transitu,  and  the  Federal  counting  power 
was  shown  that  the  Republicans  had  no  right  to  cast 
for  Hayes  the  electoral  vote  of  Florida.  That  judg 
ment  destroyed  no  right  in  the  Hayes  pretenders;  it 
was  the  search-light  of  the  State  locating  her  political 
act  as  defined  by  her  laws  provided  before  this  bitter 
contest,  by  which  laws  alone  it  could  be  her  act.  This 
judicial  illumination  created  no  right  in  the  Tilden 
claimants:  it  discovered  to  the  Federal  counting  power 
an  existing  right  and  pledged  the  faith  and  power  of 
the  Commonwealth  of  Florida  to  enforce  recognition 
of  that  right:  it  made  plain  that  that  right  was  the 
function  of  the  Tilden  men  to  cast  for  Florida  her 
electoral  vote. 

Then,  having  jurisdiction  over  the  remedy  by  quo 
warranto,  having  had  jurisdiction  and  service  upon  the 
parties,  it  only  remains  to  see  the  scope  that  the  court 
might  take  in  the  case.  The  Republicans  on  the  Com 
mission  held  that  the  pro-Hayes  report  of  the  State 
canvassing  board  constituted  the  act  of  the  State ;  and, 
therefore,  that  the  State  canvassing  board  was  the 
final  determinant  of  the  question  as  to  who  had  been 
elected  at  the  election  of  November  7,  1876.  This 
conclusion  of  the  Commission  was  in  violation  of  the 
jurisdiction  in  such  cases  accorded  courts  in  quo  war 
ranto  actions,  since  the  very  origin  of  the  action.  That 
courts  may  go  behind  the  return  of  the  canvassers  and 


124  The  Hayes-Tilden  Contest 

investigate  all  the  facts  of  the  election,  is  the  un 
doubted  jurisdiction  of  the  court.  Basing  a  deduction 
of  the  rule  upon  a  long  line  of  well-recognized  au 
thorities,  High  says : 

"It  is  now  the  well-established  doctrine,  that  in  pro 
ceeding  upon  information  to  test  the  title  to  a  public 
office,  the  return  or  certificate  of  the  canvassing  officers 
as  to  the  result  of  the  election,  is  not  conclusive  as  to 
the  result  or  to  the  title  to  the  office.  Such  officers 
are,  in  general,  held  to  be  only  ministerial  officers, 
vested  with  no  judicial  functions  whatever,  and  their 
return  is,  at  the  most,  but  prima  facie  evidence  in  favor 
of  the  incumbent  to  the  office.  The  courts  will  there 
fore  go  behind  such  return,  and  will  investigate  the 
facts  of  the  election,  the  number  of  votes  cast,  and  the 
legality  of  the  action  of  the  canvass.  *  *  *  But  as 
between  the  actual  ballots  cast  at  the  election,  and  the 
canvass  of  those  ballots  by  the  canvassing  officers,  the 
ballots  constitute  the  primary  and  controlling  evidence 
of  the  election.  So  the  fact  that  the  incumbent  de 
facto  of  an  office  holds  a  commission,  therefore,  is  not 
conclusive  as  to  his  right,  since  the  title  is  derived  from 
the  election  and  not  from  the  commission."19  As 
shown  more  fully  elsewhere  herein,  the  rule  as  thus 
stated  was  the  law  of  Florida  at  the  time  of  this  case. 
It  was  not  only  the  well-recognized  jurisdiction  of  the 
court  as  founded  upon  the  common  law  rules,  but  it 
was  a  part  of  the  fundamental  law  of  the  State.  Sec 
tion  16,  article  16,  of  the  Florida  constitution  provides: 
"A  plurality  of  votes  given  by  the  people  at  an  election 
shall  constitute  a  choice."  When  the  law  of  1872 

"Extra.  Legal  Rem.,  2nd  ed.,  sees.  638,  639a,  76;  19  Am. 
&  Eng.  Enc.  Law,  673. 


The  Hayes  Usurpers  125 

provided  that  electors  of  President  and  Vice-Presi 
dent  of  the  United  States  should  be  "elected,"  this 
provision  of  the  constitution  made  the  plurality  of  the 
actual  legal  ballots  cast  at  the  election  the  controlling 
evidence  of  the  election. 

Therefore,  when  the  State  court  exercised  jurisdic 
tion  to  determine  whether  or  not  the  pro-Hayes  report 
of  the  State  canvassing  board  was  valid,  it  was  fully 
within  its  jurisdiction  and  right  as  defined  by  the 
State  constitution  and  law.  The  judgment  of  the  court 
and  not  of  the  canvassing  board  was  the  credential 
upon  which  the  Federal  counting  power  should  have 
relied  in  counting  the  electoral  votes  of  Florida,  unless 
there  were  some  prohibition  in  or  authorized  by  the 
Constitution  of  the  United  States  rendering  some  ele 
ment  of  the  State  law  or  procedure  unavailable  in  the 
case  of  Presidential  electors. 

Then,  second,  in  reference  to  Presidential  electors, 
does  the  Federal  Constitution  forbid  or  authorize  Con 
gress  to  prohibit  to  a  State  the  use  of  any  one  of  these 
rules  of  quo  warranto? 

The  only  provisions  of  a  Federal  nature  bearing  upon 
this  point  are  in  the  Constitution  which  says :  "The 
Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their 
votes ;  which  day  shall  be  the  same  throughout  the 
United  States ;" 20  and  in  the  law,  pursuant  to  this 
provision,  which  indicates  the  time  of  the  choice  and 
names  the  day  for  the  meeting  of  the  electoral  college. 

Now,  remembering  that  the  fundamental  principles 
of  quo  warranto  are  neither  new  nor  peculiar  to 
Florida,  having  been  the  law  long  before  the  Hayes- 

80  Art.  II.,  sec.  1. 


126  The  Hayes-Tilden  Contest 

Tilden  contest,  and  being  well  known  at  the  formation 
of  the  Constitution,  let  us  see  if  any  fair  interpretation 
will  serve  to  render  the  State  functus  offlcio  to  deter 
mine  which  of  claimant  parties  were  the  rightful 
electors,  by  proceeding  after  the  day  upon  which  the 
rival  claimants  had  attempted  to  cast  the  electoral  vote 
of  the  State. 

Let  us  find  whether  or  no  electors  are  Federal  or 
State  officers,  and  what  powers  the  Federal  government 
may  exercise  over  electors.  Defining  the  powers  of 
the  Federal  government  over  electors,  Commissioner 
Garfield  correctly  said : 

"To  sum  up  these  limitations  in  brief,  in  obedience 
to  the  Constitution,  Congress  fixes  the  day  for  choosing 
the  electors,  and  the  day  when  they  must  vote.  It 
prescribes  the  number  of  electors  for  each  State,  and 
limits  their  qualifications.  These  are  the  only  limita 
tions  upon  the  authority  of  the  States  in  the  appoint 
ment  of  electors  of  the  President.  Every  other  act 
and  fact  relating  to  their  appointment  is  placed  as 
absolutely  and  exclusively  in  the  power  of  the  States, 
as  it  is  within  their  power  to  elect  their  governors  or 
their  justices  of  the  peace.  Across  the  line  of  these 
limitations  Congress  has  no  more  right  to  interfere 
with  the  States  than  it  has  to  interfere  with  the  election 
of  officers  in  England."  21 

"The  appointment  and  mode  of  appointment  belong 
exclusively  to  the  State.  Congress  has  nothing  to  do 
with  it,  and  no  control  over  it,"  said.  Judge  Bradley 
concurring  with  Garfield.22  The  appointment  of 

21  Proceedings,    965-6. 

22  Ib.   1020. 


The  Hayes  Usurpers  127 

electors  belongs  by  the  Constitution  wholly  to  the 
States,  "who  shall  appoint  in  such  manner  as  the  legis 
latures  thereof  may  direct,"  said  Judge  Miller.32  Said 
Judge  Strong:  "The  appointment  of  electors  however  it 
may  be  is  peculiarly  and  exclusively  a  State  affair. 
*  *  *  She  has  entire  control  over  the  elections, 
over  the  returns,  and  over  the  canvass."  24 

Hence,  it  has  long  been  settled  that,  "although  the 
electors  are  appointed  and  act  under  and  pursuant  to 
the  Constitution  of  the  United  States  they  are  no  more 
officers  or  agents  of  the  United  States  than  are  mem 
bers  of  the  State  legislature  when  acting  as  the 
electors  of  Federal  Senators  or  the  people  of  the  States 
when  acting  as  the  electors  of  Representatives  in  Con 
gress,"  as  the  Supreme  Court  of  the  United  States  said 
in  the  case  of  Green,  where  the  question  was  directly 
in  issue.25 

Therefore,  being  so  peculiarly  a  State  office,  the 
Federal  government  most  certainly  cannot  protect  it 
against  usurpation.  The  framers  of  the  Constitution 
and  the  States  that  ratified  it  well  knew  that  the 
common  law  remedy  by  the  writ  in  the  nature  of  a 
quo  warranto  was  the  remedy  by  which  the  sovereign 
protected  against  "usurpation  or  intrusion  into,  or 
unlawfully  holding  and  exercising,"  all  offices  or  fran 
chises  created  by  the  sovereign  power  and  filled  either 
by  the  king  or  by  the  people.  They  knew  that  since 
1710  the  statute  of  Qth  Anne  had  given  private  persons 
the  right  to  have  and  prosecute  this  writ  in  such  man- 

23  Ib.  1009. 

24  Ib.   997. 

2«  In  re  Green,   134  U.   S.,  377,  379-80. 


128  The  Hayes-Tilden  Contest 

ner  as  is  usual  in  cases  of  information  in  the  nature  of 
a  quo  warranto.20 

It  was  well-known  that  in  such  cases,  prosecuted 
either  by  the  sovereign  or  by  private  relators,  the 
courts  were  authorized  and  empowered  to  give  judg 
ment  of  ouster  and  also  to  impose  a  fine  upon  the 
defendant;  and  that  the  relators  might  have  in  their 
favor  judgment  against  the  defendants  for  costs.  Amer 
icans  knew  that  Blackstone  had  said:  "The  judgment 
on  a  writ  of  quo  warranto  (being  in  the  nature  of  a 
writ  of  right)  is  final  and  conclusive,  even  against  the 
crown;"27  and  that  though  not  so  conclusive  in  later 
English  practice,  it  was  the  common  law's  great  in 
strument  for  protecting  against  usurpation  and  in 
trusion  all  "offices  and  franchises  by  punishing  the 
usurper  or  intruder,"  no  less  than  to  recover  to  the 
State  a  usurped  office  or  franchise;  and  that  it  was 
both  penal  and  civil  in  its  nature.28 

Punishment  must  succeed  the  wrong.  The  power 
to  punish  inherently  carries  the  power  to  determine 
the  rights  of  those  over  whom  the  jurisdiction  extends. 
The  Constitution  gave  the  elector  a  function  on  a 
definite  day,  one  day;  the  common  law  writ  in  the 
nature  of  a  quo  warranto  gave  the  court  having  juris 
diction  over  the  party  exercising  that  function  the 
power  to  protect  it  by  punishing  usurpers  or  in 
truders.  The  jurisdiction  of  the  quo  warranto,  the 
nature  of  punishment;  the  brevity  of  the  time  for 
exercising  the  function  of  the  office, — all  render  it  im 
possible  for  a  court  to  proceed  to  judgment  upon  a 

26  9  Anne,  ch.   20. 

"3    Cooky's    Bla.    264. 

»4   Bla.    312. 


The  Hayes  Usurpers  129 

writ  of  this  nature  before  the  expiration  of  the  time 
for  the  act  by  the  elector. 

Then,  the  limitation  of  the  Constitution  as  to  the 
day  upon  which  the  elector  must  act,  left  the  State  not 
alone  with  "entire  control  over  the  elections,  over  the 
returns,  and  over  the  canvass,"  but  with  the  power  of 
protecting  the  office.  Such  a  right  is  inherent  in  the 
very  nature  of  government,  as  the  Supreme  Court  of 
the  United  States  in  1865,  in  Territory  vs.  Lock-wood, 
said.29  Such  a  right  being  inherent  in  government  ; 
and,  unquestionably  not  in  the  United  States  govern 
ment  as  to  the  office  of  Presidential  electors,80  must 
adhere  in  the  State  government:  the  elector  is  the 
officer  of  the  State  and  his  office  is  under  the  protec 
tion  of  the  State.  Since  it  is  undisputed  that  an 
elector  is  exclusively  a  State  officer  or  representative 
and  his  office  or  function  peculiarly  and  exclusively 
under  the  protection  of  the  State  ;  and  since  it  was 
well  known  that  the  quo  warranto  was  only  available 
where  there  had  been  user  or  attempt  at  user;  and 
since  user  or  attempt  could  occur  only  and  solely  on  the 
day,  the  one  day,  certain  and  fixed  by  Congress  ;  and 
since  there  was  no  other  remedy  of  a  like  adequate 
nature  known  to  the  common  law;  and  since  the 
United  States  Constitution  provided  no  Federal  remedy 
for  protecting  the  office  of  elector,  it  seems  to  me  an 
irresistible  conclusion  that  the  Federal  Constitution  pre- 
.  vs.  Lockwood,  3  Wall.  236,  240. 


30  In  harmony  with  the  general  principles  of  interpretation,  in 
the  act  of  Congress  of  May  31,  1870,  conferring  upon 
Federal  circuit  courts  jurisdiction  of  suits  to  recover  offices, 
electors  of  President  and  Vice-President  are  excepted,  thus 
again  giving  emphasis  to  the  fact  of  State  jurisdiction.  16  St. 
L.  146,  4  An.  S.  235. 


130  The  Hayes-Tilden  Contest 

serves  to  each  State  the  fullest  power  to  determine  sub 
sequently  to  the  electoral  day  which  of  disputants 
exercised  on  that  day  her  office,  which  determination 
in  the  very  nature  of  the  case  under  the  long  settled 
common  law  quo  ivarranto  rules  can  only  be  post  hac. 

Why  have  I  gone  to  the  common  law  as  understood 
in  America  at  the  adoption  of  the  Constitution  for  the 
rules  by  which  to  construe  that  instrument?  The 
lawyer  need  not  be  told;  and  all  students  now  generally 
know  that  the  words  and  terms  of  the  Constitution  are 
to  be  construed  and  enforced  in  the  sense  in  which 
they  were  understood  by  those  who  proposed  and  those 
who  adopted  that  instrument,  or  an  amendment  at  the 
time  of  its  incorporation.31 

Following  the  early  and  uniform  decisions,  as  the 
Supreme  Court  said  in  Bain's  case  in  1887,  in  construing 
the  Constitution  "we  are  to  place  ourselves  as  nearly 
as  possible  in  the  condition  of  the  men  who  formed  that 
instrument."  32  The  condition  of  the  parties  who  framed 
and  adopted  the  Constitution  may  be  most  certainly 
known,  and  the  instrument  may  be  more  clearly  under 
stood,  it  is  now  unquestionably  settled,  by  the  light 
of  the  common  law.  "The  Constitution  of  the  United 
States,  like  those  of  all  the  original  States  (and  in 
fact  of  all  the  States  now  forming  the  Union,  with 
the  exception  of  Louisiana)  presupposed  the  existence 
and  authority  of  the  common  law,"  said  the  court  in 
Lynch  vs.  Clark  in  i844.33  These  rules  are  now  uni- 

w  The  Huntress  (1840),  2  Ware,  U.  S.,  89,  12  Fed.  Cases, 
No.  6,914. 

32  Ex  parte  Bain,  121  U.  S.  12;  Brown  vs.  Maryland  (1827), 
12  Wheat.  137. 

38  1   Sandf.  Ch.   (N.  Y.)   662. 


The  Hayes  Usurpers  131 

versally  recognized.84  "The  adoption  of  the  Constitution 
did  not  deprive  the  people  of  the  several  colonies  of 
the  protection  and  advantage  of  the  common  law.  The 
Constitution  itself  recognizes  the  fact  of  the  con 
tinued  existence  of  the  common  law,  and  indeed  it  is 
based  upon  the  principles  thereof,  and  its  correct 
interpretation  requires  that  its  provisions  shall  be  read 
and  construed  in  the  light  thereof," — as  we  find  the  law 
affirmed  in  Murray  vs.  Chicago,  &c.,  in  iSg^36 

It  is  interesting  that  at  the  adoption  of  the  Consti 
tution  Blackstone's  Commentaries,  which  brought  the 
law  of  England  down  to  that  day,  and  which  is  one  of 
our  greatest  and  most  satisfactory  expositions  of  the 
common  law,  were  more  generally  known  in  America 
than  in  England;  and  "familiar  not  only  to  the  pro 
fession,  but  to  all  men  of  the  general  education  of  the 
founders  of  our  Constitution."  * 

The  Federal  law  enacted  February  3,  1887,"  was 
meant  to  limit  the  time  within  which  any  State  may 
determine  any  controversy  or  contest  concerning  the 
appointment  of  all  or  any  of  her  electors.  It  provides 
that  such  determination  shall  be  conclusive  and  shall 
govern  in  counting  the  electoral  votes  of  that  State, 
only  when  the  determination  shall  have  been  made 
at  least  six  days  prior  to  the  time  fixed  for  the  meet- 

"Schick  vs.  U.  S.  (1904),  195  U.  S.  68;  U.  S.  vs.  Wong  Kim 
Ark  (ISygj,  169  U.  S.  654;  Smith  vs.  Alabama  (1888),  124  U. 
S.,  478,  and  many  others  in  an  unbroken  line;  Ewing,  Legal  and 
Historical  Status  of  the  Dred  Scott  Decision,  12. 

36  62  Fed.  R.  27,   92   Fed.   R.   868.     See  also  Frank  Hendrick, 
The    Power    to    Regulate    Corporations    and    Commerce.    256    et 
seqr. 

^Knote's  Case  (1874),  10  Ct.  Cl.  397,  affirmed  (1877)  by 
Supreme  Court  U.  S.,  95  U.  S.  149;  Schick  vs.  U.  S.  (1904), 
195  U.  S.  68. 

37  6  Anno.  Statutes.  17,  24  Statutei  at  L.  373. 


132  The  Hayes-Tilden  Contest 

ing  of  the  electors.  This  statute  has,  of  course,  no 
bearing  upon  the  Florida  contest,  except  in  so  far  as  it 
may  be  taken  as  an  admission  that  before  its  enactment 
a  State  might  provide  such  means  as  her  laws  recog 
nize,  finally  and  conclusively  to  determine  such  ques 
tions  after  the  day  upon  which  electors  by  the  Federal 
law  are  required  to  meet.  However,  the  student  will 
be  interested  in  the  observation  that  the  constitutionality 
of  this  law  is  questionable.  In  effect  the  law  is  utterly 
destructive  of  the  proceeding  in  the  nature  of  a  quo 
warranto :  and  for  the  simple  reason  that  this  action 
cannot  be  invoked  until  there  has  been  some  user,  or 
threat  or  attempt  of  user,  by  the  party  against  whom 
the  writ  is  aimed.  Had  this  provision  of  1887  been 
the  law  at  the  time  of  the  pro-Hayes  report  by  the 
State  canvassing  board  of  Florida,  the  courts,  the 
final  determinant  provided  by  the  law  for  reviewing 
such  actions  by  the  State  board,  would  have  remained 
powerless,  since  the  State  canvassing  board  did  not 
conclude  its  labor  until  after  one  o'clock  of  the  morning 
of  the  day  upon  which  the  electors  by  the  Federal  law 
were  required  to  meet.  This  restrictive  Federal  meas 
ure,  therefore,  is  inconsistent  with  the  true  American 
conception  of  State  sovereignty ;  and  of  that  part  of 
such  sovereignty  preserved  by  the  Federal  Constitution 
necessary  to  protect  the  State  office  of  Presidential 
elector.  It  is  unwise  and  unfair  because  it  restricts 
the  State  to  limits  too  narrow  as  compared  with  the 
great  interests  to  be  served. 

It  is,  for  these  reasons,  confidently  believed  that  the 
judgment  of  the  Florida  court  rendered  in  the  quo 
warranto  proceeding  was  final  as  to  the  rights  of  the 
parties  claiming  to  be  electors;  and  that  its  conclusion 


The  Hayes  Usurpers  133 

that  the  Hayes  claimants  were  and  at  all  times  had 
been  mere  usurpers,  whose  acts  were  null  and  void, 
was  binding  upon  the  Commission;  and  that  that 
judgment  embodied  an  authoritative  and  conclusive 
construction  of  the  Florida  law,  by  which  law  the  Com 
mission  claimed  to  be  governed,  and  that  that  con 
struction  should  have  been  respected. 


VIII. 

The  Florida  Election  Law. 

WE  are  now  to  examine  the  decision  of  the 
last  question,  as  the  majority  shaped  the 
situation,  before  the  Commission  in  the 
Florida  Case.  Rejecting  the  acts  of  the 
State  subsequent  to  the  electoral  day,  the  majority  of 
the  Commission  assumed  to  determine  for  the  State 
which  acts  of  her  election  officers  were  according  to 
her  laws,  and  thus  had  become  the  act  of  the  State. 
So,  entirely  aside  from  the  question  whether  a  State 
is  functus  officio  as  to  her  electors  after  the  day  upon 
which  the  Federal  law  requires  electors  to  cast  their 
votes,  we  come  to  the  question  whether  the  Republicans 
were  right  in  the  last  analysis  in  deciding  that  the 
board  of  State  canvassers  "is  made  by  the  statute 
the  ultimate  declarant  of  what  the  vote  was  and  of  its 
results;"  and  that  the  board's  jurisdiction  over  the 
returns  "is  not  merely  to  count  up  and  compare  the 
returns,  but  upon  all  the  facts  submitted  to  them  to 
determine,  that  is,  to  decide,  who  is  elected." 

Resting  alone  upon  this  majority  interpretation  of 
the  State  election  law,  the  correctness  of  that  inter 
pretation  is  most  vital  to  the  Hayes  title.  Hence  to 
find  the  true  interpretation  of  the  State  law,  and  to 
measure  the  actions  of  the  State  board  by  that  law, 
that  we  may  see  if  the  majority  was  right  in  holding 
that  the  law  was  such  that  the  pro-Hayes  report  was 
the  act  of  the  State,  we  must  see  just  what  the  State 
134 


The  Florida  Law  135 

board  did.  With  the  acts  of  the  board  and  the  law 
both  before  us,  we  may  grasp  firmly  the  points  involved. 

We  remember  that  two  claims  were  made  by  the 
State  canvassing  board.  First,  that  upon  their  face  the 
returns  before  the  board  showed  a  majority  for  the 
Hayes  claimants.  An  examination  of  this  claim  is  re 
served  for  a  subsequent  chapter.  Second,  that  after 
having  been  canvassed,  the  returns  yet  gave  the  State 
to  Hayes,  though  by  somewhat  different  figures.  So 
the  board  did  not  merely  add  up  the  vote  as  shown  by 
the  returns  before  them,  but  they  canvassed  those  re 
turns;  they  took  such  action  as  brought  before  them 
evidence  which  they  believed  justified  them  in  altering 
the  returns,  amending  some  by  subtractions  and  chang 
ing  others  by  additions ;  while  still  others  were  en 
tirely  rejected  in  toto.  Upon  this  canvass  they  ren 
dered  the  pro-Hayes  report;  and  this  is  the  report  and 
canvass  that  the  Republicans  sustained,  holding  that 
under  the  lav/  that  determination  and  declaration  of 
the  board  was  within  its  jurisdiction,  that  by  the  law 
the  board  was  the  final,  ultimate  determinant  and 
declarant  of  what  the  vote  was  and  of  its  result;  and 
that,  therefore,  the  pro-Hayes  report  was  the  act  of 
the  State. 

The  record  left  us  in  the  action  of  Drew  vs.  the 
Board  of  Canvassers  by  mandamus,  tried  in  the  su 
preme  court  of  the  State  before  the  Commission  met, 
furnishes  one  of  the  best  sources  from  which  to 
learn  what  was  done  by  the  pro-Hayes  board  in  its 
canvass,  while  it  affords  also  the  best  opportunity  to 
study  the  statute.  We  thus  get  the  interpretation  of 
the  local  law  as  given  by  the  highest  court  of  the  State; 
and  this  interpretation  measured  by  prior  local  well- 


136  The  Hayes-Tilden  Contest 

settled  law,  and  by  the  general  rule  in  America,  may 
then  be  properly  valued,  which  necessarily  places  a 
correct  estimate  upon  the  construction  by  the  Re 
publicans  of  the  Commission  and,  of  course,  upon  their 
decision  of  the  Florida  case. 

There  was  practically  no  difference  between  the  votes 
cast  for  the  presidential  electors  and  for  the  State 
candidates.  The  same  canvass  which  resulted  in  a 
pro-Hayes  determination  also  resulted  in  a  pro-Re 
publican  decision  for  the  candidates  for  State  offices. 
Thus  the  Republican  governor,  Stearns,  was  declared 
re-elected,  and  the  election  of  a  Republican  legislature 
and  other  State  officers  appeared  along  with  the  pro- 
Hayes  finding.  An  interpretation  of  the  acts  which  led 
to  the  Republican  decision  in  the  State  election,  is  an 
interpretation  of  the  acts  which  led  to  the  pro-Hayes 
report.  The  board  had  no  more  and  no  less  jurisdic 
tion  in  the  one  case  than  in  the  other,  and  as  to  each 
performed  the  same  acts ;  and  the  facts  in  the  one  case, 
unchanged  in  any  respect  whatever,  are  the  facts  of  the 
other. 

In  several  aspects  of  this  case  it  is  important  to  know, 
as  preliminary  to  the  main  study,  that  in  such  cases  as 
the  one  instituted  and  prosecuted  by  Drew,  the  su 
preme  court  of  Florida  had  undoubted  jurisdiction  to 
proceed  in  mandamus  against  the  board  of  State  can 
vassers.  Jurisdiction  is  given  in  such  cases  by  Art. 
VII.,  sec.  5,  of  the  constitution  of  I868,1  then  the  funda 
mental  law  of  the  State.  Long  before  the  Hayes- 
Tilden  contest,  the  supreme  court  held  that  the  action  of 
mandamus  was  the  proper  and  only  efficient  remedy 
to  enforce  the  performance  of  duties  by  ministerial 

1  Poore,  Charters  and  Consts.,  353. 


The  Florida  Law  137 

officers  or  officers  having  whatever  power  the  State 
board  had;2  and  in  Bloxam  vs.  the  Board  of  State 
Canvassers,  decided  in  1871,  the  identical  point  raised 
in  the  Drew  case  was  before  the  court  on  a  writ  of 
mandamus  to  compel  the  board  to  perform  the  same 
act  and  duty  which  Drew  sought  to  enforce  in  1876. 
The  court  sustained  its  jurisdiction  and  sanctioned  the 
remedy.3  It  is  claimed  that  the  jurisdiction  of  the 
State  board  in  1871  was  not  the  same  as  in  1876,  as 
to  which  we  shall  see  more  fully  presently;  but  let  us 
remember  that  no  one  has  ever  questioned  that  the 
supreme  court  had  the  same  jurisdiction  by  mandamus 
in  1876  than  it  had  in  1871  and  long  before  that  time. 
The  rule  laid  down  by  the  court  in  1868  was  yet  the 
rule  in  1876:  that  "a  proceeding  in  reference  to  the 
highest  officers  of  the  State,  is  almost  universally  in 
stituted  in  the  highest  courts  of  the  State  or  nation."4 
In  the  petition  filed  December  13,  1876,  Drew  gave 
as  the  grounds  upon  which  he  asked  the  writ  that  the 
State  board  had  usurped  jurisdictional  functions  and 
powers  in  "that  they  went  behind  the  face  of  the  election 
returns  from  divers  counties  of  the  State,  and  did,  upon 
certain  affidavits,  or  pretended  affidavits,  and  upon 
other  pretended  evidence  discard  the  vote  of  the  county 
of  Manatee,  and  did  refuse  to  canvass  and  count  and 
enumerate  the  votes  of  the  counties  of  Jackson  and 
Hamilton,  as  shown  by  the  returns  of  and  from  the  said 
counties  of  said  election  *  *  *  and  that  they  should 
have  confined  their  canvass  of  said  returns  to  what 
was  shown  or  appeared  on  the  face  of  the  said  re- 

2  Commissioners  vs.  King,  13   Fla.   451. 

3  13  Fla.  55. 

4  State  vs.  Gleason,  12  Fla.  190,  202,  212. 


138  The  Hayes-Tilden  Contest 

turns,  the  same  not  appearing  to  be  unintelligible  or 
fraudulent,  but  genuine  and  bona  fide."* 

The  two  Republican  members  of  the  board,  McLin 
and  Cowgill,  filed  an  answer;  while  the  Democratic 
member,  Cocke,  filed  a  separate  answer.  The  Re 
publicans  denied  any  usurpation,  and  alleged  that  as  to 
Manatee  "it  appeared  from  the  return  of  said  county 
and  from  evidence  received  by  said  board,  that  the 
return  was  so  irregular  and  false  and  fraudulent  that 
said  board  was  unable  to  determine  the  true  vote,  and 
so  did  not  include  it  in  the  count  upon  which  they 
based  their  determination  and  declaration."  As  to  the 
counties  of  Jackson,  Hamilton,  and  Monroe,  they  said 
"it  was  shown  by  evidence  that  the  returns  there 
from  were  severally  false  and  fraudulent,  and  that  the 
board  determined  from  the  evidence,  with  reference 
to  each  of  said  counties,  what  the  true  vote  therein 
was  *  *  *  and  the  result  of  such  determination  was 
acted  upon  in  declaring  the  result." 

On  motion  the  court  required  this  "answer  to  be 
amended  so  as  to  set  forth  the  specific  causes  and 
grounds  of  such  rejection  in  each  and  every  instance 
of  such  rejection."  On  December  18  the  defendants 
complied  with  the  order  of  the  court. 

In  the  amended  answer  the  majority  of  the  board, 
the  two  Republicans,  said  that  they  did  not  include 
in  their  count  the  returns  from  the  county  of  Manatee 
"upon  the  ground  of  irregularity  and  fraud  in  the 
conduct  of  the  election  on  said  7th  day  of  November, 
1876."  The  irregularity,  they  charged,  consisted  in 
receiving  the  votes  of  persons  not  registered,  and 

•  16  Fla.  19,  22,  30. 


The  Florida  Law  139 

that  this  was  shown  by  evidence  entirely  apart  from  the 
returns  before  them. 

They  include  the  county  of  Clay  in  the  amended 
answer,  and  say  they  added  29  votes  to  those  cast  for 
Drew  and  6  to  those  cast  for  Stearns  upon  the  ground 
that  said  votes  had  been  improperly  rejected  by  the 
county  canvassers.  They  deducted  four  Drew  votes 
and  two  Stearns  votes  "upon  the  ground  that  said 
votes  were  cast  by  non-residents  of  the  county." 

As  to  Hamilton  county  they  said  they  deducted  the 
vote  of  precinct  number  two  from  the  returns  from 
said  county  "upon  the  ground  of  gross  violation  of  the 
election  law,  and  fraud  in  the  conduct  of  the  election," 
"as  appeared  from  the  returns." 

Five  votes  cast  in  Hernando  county  were  rejected; 
two  from  the  vote  cast  in  Leon  county;  seven  from 
the  Orange  county  vote,  on  the  ground  that  "said  votes 
were  illegal  or  illegally  cast."  557  votes  were  deducted 
from  the  returns  before  the  board,  from  the  vote  of  Jack 
son  "upon  the  ground  of  irregularity  and  gross  fraud 
in  the  conduct  of  the  election."  61  votes  were  de 
ducted  from  the  votes  "as  they  appeared  from  the  re 
turns"  of  Jefferson  upon  the  ground  that  they  were 
"fraudulently  cast."  The  vote  of  one  precinct  in  Mon 
roe  was  deducted  from  the  county  "vote  as  it  appeared 
on  the  face  of  the  returns"  on  the  "ground  of  irregu 
larity  in  the  conduct  of  the  election  and  fraud  in  the 
conduct  of  the  inspectors  of  said  election  in  said  pre 
cinct."  8 

Five  votes  were  deducted  from  the  returns  from 
Hernando  county  on  the  ground  that  said  votes  were 
illegally  cast.  From  the  vote  of  Leon  two  deductions 

«Ib.  30,  31. 


140  The  Hayes-Tilden  Contest 

were  made  ';on  the  ground  that  they  were  illegal." 
From  the  Orange  county  returns  seven  were  taken 
on  the  ground  that  they  were  illegally  cast. 

Now,  with  these  admitted  acts  of  canvass  by  the 
Republican  members  of  the  State  board,  with  which  the 
Democratic  member  did  not  concur,  in  mind,  let  us 
get  down  to  strictly  judicial  consideration  of  this 
canvass  to  find  whether  such  acts  were  within  the 
jurisdiction  of  the  board.  Governor  Drew  and  the 
Democrats  insisted  that  these  acts  by  the  majority 
of  the  board  were  ultra  vires;  and  if  so,  then  even 
the  Republicans  admitted  them  to  be  invalid.  The 
Democrats  also  contended  that  since  the  board  had  not 
complied  with  the  law,  it  might  be  required  to  re 
convene  and  recanvass  within  its  jurisdiction.  So  the 
investigation  upon  this  point  will  determine,  first,  the 
jurisdiction  of  the  board;  and  second,  whether,  hav 
ing  adjourned  before  judgment  in  a  mandamus  pro 
ceeding,  it  may  be  required  to  reconvene  and  recanvass 
according  to  the  law  under  which  it  acts  as  that  law 
is  construed  by  the  court. 

Bear  in  mind  that  the  county  canvassing  board,  com 
posed  of  the  county  judge,  the  clerk  of  the  circuit 
court,  and  a  justice  of  the  peace,  was  required  to  can 
vass  the  votes  "as  shown  by  the  returns  on  file  in  the 
office  of  the  clerk  or  judge."  These  were  the  returns 
received  from  the  officers  at  the  precincts  where  the 
votes  themselves  are  cast  by  the  voters.  The  county 
board  was  required  to  make  and  sign  duplicate  certifi 
cates,  to  be  recorded  by  the  clerk,  one  of  which  was 
to  be  sent  to  the  governor  and  the  other  to  the  secre 
tary  of  State.  These  returns  from  the  various  coun 
ties  thus  filed  in  the  office  of  the  secretary  of  State 


The  Florida  Law  141 

were  the  returns  that  were  canvassed  by  the  State 
board.  The  duties  of  the  precinct  officers  and  of  the 
county  canvassing  board,  in  the  election  of  1876,  are 
defined  by  the  acts  of  i868.7  The  act  of  February  27, 
1872,  was  merely  amendatory  of  the  law  of  1868,  and 
leaves  unchanged  the  provisions  governing  precinct 
officers  and  county  canvassers.  The  most  important 
change  in  the  law  is  that  found  in  section  four  of 
the  amendment,  defining  the  jurisdiction  of  the  board 
of  State  canvassers.  Upon  its  interpretation  depends 
the  justification  or  excuse  for  the  decision  of  the  Com 
mission,  granting  the  Commission  the  right  of  interpre 
tation  its  majority  assumed. 

This  amendatory  section  creates  a  board  of  State 
canvassers  similar  to  the  board  as  it  existed  under  the 
law  of  1868,  directs  the  time  and  place  of  meeting;  and 
gives  jurisdiction  "to  proceed  to  canvass  the  returns 
of  said  election"  "received  from  the  several  counties'' 
and  "to  determine  and  declare  who  shall  have  been 
elected"  "as  shozvn  by  such  returns." 

Now,  was  the  State  board  limited  to  an  inspection 
of  the  face  of  these  returns  that  were  on  file  in  the 
office  of  the  secretary  of  State;  or,  had  they  juris 
diction  to  reject  and  refuse  to  count  any  numbers 
certified  therein  because  they  believed  there  was  an 
illegal  and  fraudulent  vote  as  the  basis  of  the  certified 
results? 

Our  labor  is  much  simplified  by  keeping  before  the 
mind  the  admissions  made  by  the  Republicans  in  their 
answers  to  the  mandamus  petition.  They  make  no 
charge  whatever  that  any  grounds  upon  which  they 
refused  to  ratify  or  accept  the  certified  count  of  the 

7  Laws  of   1868,   67. 


142  The  Hayes-Tilden  Contest 

various  Tilden  votes  appeared  upon  the  returns  before 
them  made  by  the  county  canvassers.  They  charge  no 
fraud  against  the  county  canvassing  officers;  and  not 
once  is  it  claimed  or  alleged  that  any  such  return  was 
irregular,  ambiguous,  or  shown  to  be  a  false  or  fraudu 
lent  canvass  of  the  returns  received  by  the  clerk  and  the 
judge  from  the  precinct  officers  of  the  respective  coun 
ties.  Not  only  are  these  confessions  made  in  the 
answers  to  the  mandamus  but  the  minutes  of  the  State 
canvassing  board  show  that  no  ground  upon  which  the 
pro-Hayes  majority  of  the  State  board  rejected  enough 
Tilden  returns  to  report  the  final  result  in  favor  of 
the  Hayes  electors,  appeared  upon  the  face  of  the 
returns  made  by  the  county  canvassers  or  in  connec 
tion  with  their  canvass.  When  the  returns  from  the 
counties,  Democratic  votes  from  which  were  rejected 
by  the  State  board,  were  compared  with  the  returns 
on  file  in  the  respective  offices  of  the  clerks,  they  were 
found  to  correspond  exactly  with  the  polls  and  with 
the  returns  by  the  precinct  officers.  Every  single 
charge  went  to  matters  that  did  not  arise  upon  the 
face  of  the  returns  that  were  before  the  State  board, 
and  no  evidence  impeached  or  questioned  them  as 
true  and  honest  returns  of  the  votes  given. 

Hence,  but  the  one  question  is  involved:  Had  the 
State  board  jurisdiction  to  reject  returns  because  they 
believed  there  was  an  illegal  and  fraudulent  vote  be 
hind  them;  or  because  they  believed  the  election  itself 
had  not  been  legally  held  or  conducted  ?  In  other 
words,  had  the  State  board  jurisdiction  over  the  whole 
subject? 

The  Republicans  based  their  affirmative  answer  to  these 
questions  upon  two  grounds.     Judge  Miller  and  others 


The  Florida  Law  143 

contended  that  the  words  of  the  statute  authorizing  the 
board  "to  determine  and  declare"  gave  jurisdiction 
"over  the  whole  subject."3  Our  first  concern,  then,  is 
to  find  the  proper  construction  of  these  words. 

The  law  of  1868  under  which  the  State  board  acted, 
provides  that  this  board  "shall  proceed  to  canvass  the 
returns  of  such  election,  and  determine  who  shall  have 
been  elected,  by  the  highest  number  of  votes,  to  any 
office,  as  shown  by  said  returns.  They  shall  make  and 
sign  a  certificate  declaring  the  result,"  which  shall  be 
sent  to  and  recorded  in  the  office  of  the  secretary  of 
State.9  This  is  in  legal  effect  the  language  of  the  amend 
ment  of  1872.  In  both  acts  jurisdiction  is  given  the 
State  board  to  determine  and  to  declare  the  result  as 
shown  by  the  returns,  and  to  certify  who  shall  have 
been  elected. 

In  1871  the  supreme  court  of  the  State  handed  down 
a  decision  in  the  case  of  The  State  vs.  the  Board  of 
State  Canvassers,  defining  the  jurisdiction  and  power 
of  the  State  board  under  the  law  of  1868.  In  that 
case  it  was  shown  that  the  State  board,  just  as  did 
the  board  in  reaching  a  pro-Hayes  report,  had  not  in 
cluded  in  the  enumeration  upon  which  they  based  their 
certificate  or  declaration  of  the  result  all  the  returns 
as  shown  by  the  certificates  from  the  county  canvassers. 
As  did  the  pro-Hayes  board  in  the  Florida  case,  so  in 
that  case  the  board  had  adjourned  sine  die.  The  court 
had  directly  before  it  the  two  questions,  the  most  im 
portant  of  which  was :  Has  the  board,  in  "determining 
who  shall  have  been  elected,  power  to  reject  or  ne 
glect  any  county  returns"  because  they  believe  the  re- 

8  Proceedings,    1010,    1011. 

9  Bush,  Dig.  Fla.  Laws,  1868,  305;  Laws  of  1868,  p.  8. 


144  The  Hayes-Tilden  Contest 

jected  returns  represented  votes  that  had  been  fraudulent 
ly  given,  or  that  there  was  fraud  on  the  part  of  the  pre 
cinct  officers  in  conducting  the  election?  Along  with 
an  answer  to  this  question  the  court  also  decided  the 
other,  which  was  likewise  directly  in  issue :  Having 
adjourned,  after  having  exercised  jurisdiction  to  re 
ject  returns  by  reason  of  something  connected  with  the 
votes  or  the  conduct  of  the  election,  can  the  board  be 
compelled  by  mandamus  to  reconvene  and  recanvass, 
and  required  to  include  all  the  returns  as  certified  by 
the  county  canvassers? 

Deciding  these  questions  the  court  said:  "The  ob 
ject  of  the  law  is  to  ascertain  the  whole  number  of 
votes  cast,  and  who  had  received  the  highest  number 
of  such  votes,  so  that  the  choice  of  the  majority  of  the 
votes  might  be  ascertained  and  reflected."  Then  the 
court  held  that  the  State  board  had  no  jurisdiction 
to  reject  any  returns  as  shown  by  the  certificates  of 
the  county  canvassers,  and  that,  having  neglected  or 
refused  to  include  in  its  final  determination  and  de 
claration  any  such  returns,  they  had  "neglected  to  per 
form  their  duty,  and  therefore  did  not  comply  with 
the  law,  in  which  case  they  did  not  conclude  their 
duties  as  canvassers,  nor  put  an  end  to  their  powers  as 
canvassers  by  an  adjournment  sine  die.  Their  duties 
and  functions  are  mainly  ministerial,"  the  court  force 
fully  proceeds  to  hold,  "but  are  quasi  judicial  in  so 
far  as  it  is  their  duty  to  determine  whether  the  papers 
received  by  them  purporting  to  be  returns  were  in 
fact  such,  were  genuine,  intelligible,  and  substantially 
authenticated  as  required  by  law;  in  other  words, 
whether  they  contained  within  themselves  evidence  that 
they  were  authentic  returns  of  the  election.  If,  as 


The  Florida  Law  145 

is  alleged,  the  respondent  [the  State  board]  neglected 
to  examine  and  include  returns,  duly  and  legally  made 
from  several  of  the  counties,  and  therefore  but  parti 
ally  performed  what  they  were  by  law  required  to  do, 
it  must  be  considered  that  they  have  not  complied 
with  the  law,  and  that  they  may  be  required  to  do 
so  by  means"  of  a  mandamus.10 

Therefore,  long  before  the  Hayes-Tilden  contest,  it 
had  been  settled  in  Florida  by  the  highest  court  of 
the  State  and  was  a  recognized  law  that  power  "to 
determine  and  declare"  did  not  vest  jurisdiction  "over 
the  whole  subject."  Power  to  determine  and  declare 
limited  the  State  board  to  an  inspection  and  canvass 
of  the  returns  before  them,  the  returns  made  by  the 
county  boards  and  on  file  in  the  office  of  the  secretary 
of  State.  When  such  returns  were  genuine,  that  is 
made  by  the  officers  of  the  county  authorized  by  law 
to  make  them,  intelligible  and  substantially  authenti 
cated  as  required  by  law,  the  State  board  had  no  jur 
isdiction  to  reject  or  refuse  to  enumerate  any  of  them, 
no  matter  what  the  board  may  have  believed  with  ref 
erence  to  the  conduct  of  the  election  and  the  basis 
upon  which  the  county  returns  were  predicated.  Where 
there  is  no  ground  for  rejection  other  than  that  which 
is  alleged  to  have  occurred  at  the  polls  or  on  the  part 
of  precinct  officers,  the  county  returns  must  all  Be  enu 
merated  and  be  the  sole  basis  for  the  declaration  of 
the  board.  Having  rejected  certain  returns  because 
of  what  the  board  believed  to  have  occurred  at  the 
polls,  the  pro-Hayes  report  of  the  State  board  finds 
no  justification  in  the  mere  fact  that  that  board  was 
directed  to  determine  and  to  declare.  Unless  there 

"13   Fla.   55,   73. 


146  The  Hayes-Tilden  Contest 

can  be  found  something  broader  in  the  law  of  1872  it 
is  clear  that  the  board  in  rejecting  enough  of  the 
Democratic  returns  from  certain  counties  of  the  State 
to  reach  a  pro-Hayes  declaration,  "had  not  complied 
with  the  law." 

Was  there  anything  in  the  law  of  1872  giving  the 
State  board  broader  power  or  jurisdiction  than  it 
had  under  the  law  of  1868?  The  Republicans  con 
tended,  in  effect,  that  there  was;  and  Haworth  seems 
to  retain  this  position.11  Let  us  see. 

This  law  enacted  February  27,  1872,  governing  the 
State  board,  is  as  follows : 

"On  the  thirty-fifth  day  after  the  holding  of  any 
general  or  special  election  for  any  State  officer,  mem 
ber  of  the  legislature,  or  representative  in  Congress, 
or  sooner  if  the  returns  shall  have  been  received  from 
the  several  counties  wherein  elections  shall  have  been 
held,  the  secretary  of  State,  attorney-general  and  comp 
troller  of  public  accounts,  or  any  two  of  them,  together 
with  any  other  member  of  the  cabinet  who  may  be 
designated  by  them,  shall  meet  at  the  office  of  the  sec 
retary  of  State,  pursuant  to  notice  to  be  given  by  the 
secretary  of  State,  and  form  a  board  of  State  canvass 
ers,  and  proceed  to  canvass  the  returns  of  said  elec 
tion  and  determine  and  declare  who  shall  have  been 
elected  to  any  such  office  or  as  such  member,  as  shown 
by  such  returns." 

Up  to  this  point  in  the  statute  no  fair  minded  person 
will  contend  that  the  State  board  had  any  broader 
powers  or  wider  jurisdiction  than  given  by  the  law 
of  1868.  The  rule  laid  down  by  the  supreme  court 
of  the  State  in  1871,  is  undoubtedly  the  rule  by  which 

11  The   Hayes-Tilden   Disputed    EL,    66. 


The  Florida  Law  147 


the  canvassing  board  was  to  determine  its  jurisdiction 
as  given  under  this  wording  of  this  statute.  The 
statute  plainly  limits  the  board  to  the  returns  sent 
to  the  secretary  of  State  by  the  canvassing  boards  of 
the  several  counties.  The  State  board  was  to  determine 
and  declare  the  result  "as  shown  by  such  returns." 
The  supreme  court  of  the  State  having  determined 
that  power  "to  determine  and  declare"  did  not  carry 
"jurisdiction  over  the  whole  subject,"  this  amendment 
leaves  the  board  thus  far  with  precisely  the  same  juris 
diction  which  it  enjoyed  under  the  law  of  1868.  Thus 
far  this  amendment  charges  the  State  board  with  the 
simple  ministerial  duty  of  enumerating  the  votes  given 
for  each  candidate  as  shown  by  the  returns  "received 
from  the  several  counties  wherein  elections  shall  have 
been  held." 

Most  of  the  Republicans  relied  strongly  upon  the 
remaining  paragraph  of  this  law  as  amended  in  1872, 
which  immediately  says  : 

"If  any  such  returns  shall  be  shown  or  shall  appear 
to  be  so  irregular,  false  or  fraudulent  that  the  board 
shall  be  unable  to  determine  the  true  vote  for  any 
such  officer  or  member,  they  shall  so  certify,  and  shall 
not  include  such  returns  in  their  determination  and 
declaration;  and  the  secretary  of  State  shall  preserve 
and  file  in  his  office  such  returns,  together  with  such 
other  documents  and  papers  as  may  have  been  re 
ceived  by  him  or  by  said  board  of  canvassers.  The 
said  board  shall  make  and  sign  a  certificate  containing, 
in  words  written  in  full  length,  the  whole  number  of 
votes  given  for  each  office,  the  number  of  votes  given 
for  each  person  for  each  office  and  for  member  of  the 
legislature,  and  therein  declare  the  result,  which  cer- 


148  The  Hayes-Tilden  Contest 

tificate  shall  be  recorded  in  the  office  of  the  secretary 
of  State."12 

Whatever  this  additional  wording  may  mean,  there 
was  no  ground  in  the  case  before  the  board  for  the 
exercise  of  any  broader  jurisdiction  than  that  conferred 
by  that  part  of  the  law  first  above  given.  "If  any 
such  return  shall  be  shown  or  shall  appear  to  be  so 
irregular,  false  or  fraudulent,"  indisputably  refers  to 
the  returns  received  by  the  secretary  of  State  from  the 
canvassing  boards  of  the  several  counties.  These  were 
the  only  returns  before  the  State  board,  the  only  re 
turns  they  were  authorized  to  canvass,  and  the  only 
returns  they  claimed  to  have  jurisdiction  to  canvass. 
The  State  board,  as  is  conclusively  established  by  the 
Republican  answers  to  the  petition  for  the  mandamus, 
made  no  claim  that  these  returns  before  them  and 
which  they  proceeded  to  canvass  were  or  were  shown 
to  be  "irregular,  false  or  fraudulent."  The  canvass 
upon  which  Hayes  was  declared  elected  admitted  that 
the  changes  which  the  State  board  made  and  which 
gave  the  majority  to  the  Hayes  claimants,  were  based 
upon  matters  entirely  extrinsic  to  the  returns  before 
the  board  from  the  county  canvassers.  Admitting  the 
legality  of  what  is  known  as  the  Coxe  returns  from 
Baker  county,  the  certified  results  from  the  county 
canvassing  boards  corresponded  exactly  with  the  polls 
and  with  the  returns  from  the  precincts  and  on  file  in 
the  clerks'  offices  of  the  respective  counties.  It  was  not 
the  county  returns  that  the  pro-Hayes  report  im 
peached,  but  the  election  which  lay  behind  those  re 
turns  and  which  formed  their  basis.  The  pro-Hayes 
canvass  did  not  attempt  to  justify  the  changes  that  it 

"Proceedings,    976;   McClellan's   Fla.   Dig.    498. 


The  Florida  Law  149 

made  in  favor  of  Hayes  on  the  grounds  that  any 
returns  were  or  were  shown  to  be  irregular,  false  or 
fraudulent. 

The  lawyer  need  not  be  told  that  falsehood,  fraud  or 
irregularity  in  an  election,  occurring  at  the  polling  places 
or  committed  by  those  who  conduct  the  election,  con 
stitutes  no  fraud  in  the  county  board  who  aggregate  the 
results  of  the  precinct  returns,  and  certify  the  total 
vote  of  the  county  to  the  secretary  of  State. 

Now,  as  we  have  seen,  under  the  statute  of  1868 
the  State  board  unquestionably  had  no  jurisdiction 
over  the  manner  in  which  the  voting  was  conducted. 
No  one  would  contend  that  under  that  statute  the 
board's  jurisdiction  extended  over  the  whole  sub 
ject;  under  that  statute  they  had  no  jurisdiction,  ex 
cept  to  see  that  the  returns  before  them  were  in 
telligible,  properly  authenticated,  and  without  fraud  on 
the  part  of  the  county  canvassing  officers — not  the 
precinct  or  election  officers.  These  requirements  being 
met,  the  State  board,  beyond  a  peradventure,  had  no 
discretion:  it  must  do  no  more  than  add  the  votes 
shown  by  such  returns  and  declare  the  election  of 
him  having  a  plurality.  Any  other  than  a  mere  enumer 
ation  in  such  cases  rendered  a  result  resting  thereon 
and  reached  thereby  ultra  vires,  ipso  facto,  null,  void, 
and,  of  course,  giving  no  insignia  of  right. 

Looking  at  the  statute  as  amended  in  1872,  no  word, 
phrase,  or  sentence  can  be  found  that  even  suggests 
that  the  jurisdiction  of  the  State  board  is  changed  as  to 
that  over  which  it  is  to  be  exercised. 

Clearly,  the  statute  limits  the  board  to  definite  action, 
the  same  action  that  it  might  take  under  the  old  law, 
except  that  the  amendment  defines  what  the  board  must 


150  The  Hayes-Tilden  Contest 

do  should  it,  on  account  of  irregularity,  want  of  in 
telligibility,  falsehood,  or  fraud  in  connection  with  the 
county  returns  be  unable  to  determine  the  true  vote 
given  at  the  election  as  certified  by  the  election  officers. 
No  grounds  for  the  exercise  of  the  jurisdiction  con 
ferred  by  the  amendment  arising  upon  the  face  of  the 
returns,  or  being  attributed  or  shown  with  reference 
thereto,  the  board  must  count  the  whole  number  of 
the  votes  as  given  upon  the  face  of  the  papers  before 
them,  and  declare  the  result  in  a  certificate  con 
taining  the  whole  number  of  votes  thus  shown  to  have 
been  given  for  each  office,  and  the  number  of  votes  thus 
shown  to  have  been  given  for  each  person  for  each 
office.  Neglecting  or  refusing  thus  to  include  in  their 
declaration  of  the  result  all  the  votes  as  certified  upon 
the  face  of  such  returns,  failing  "to  give  a  certificate  of 
the  result  of  the  election,  as  appeared  by  the  returns 
in  their  possession  at  the  time  they  made  their  final 
statement,"  to  use  the  words  of  the  supreme  court  in 
deciding  the  case  against  Gibbs,13  in  1871,  they  "there 
fore  do  not  perform  what  they  by  law  are  required 
to  do,  and  it  must  be  considered  that  they  have  not 
complied  with  the  law."  Therefore  the  pro-Hayes 
report,  being  the  result  of  acts  ultra  vires,  was  not 
the  act  of  the  State,  and  furnished  no  "insignia  of 
title." 

Hence,  when  the  supreme  court  of  the  State  in  its 
judgment  in  the  mandamus  prosecuted  by  Governor 
Drew  against  the  State  board  of  canvassers  decided 
that  the  board  should  have  included  and  should  have 
counted  in  its  report  of  the  result,  all  the  county  re 
turns  that  it  rejected,  the  decision  was  in  harmony  with 

« 13   Fla.    55,   74. 


The  Florida  Law  151 

the  long  settled  law  of  the  State.  This  interpretation 
rather  than  that  of  the  majority  of  the  Commission, 
was  correct. 

Not  only  was  that  decision  in  the  mandamus  in  har 
mony  with  the  settled  law  of  Florida  and  a  correct 
view  of  its  statute,  but  it  was  an  expression  of  the 
law  defining  the  jurisdiction  of  State  canvassers,  as 
almost  universally  enforced  in  America.  Says  a  recog 
nized  authority:  "The  State  canvassers  can  act  only 
upon  the  certified  statements  of  the  county  canvassers 
returned  by  the  several  county  clerks  to  the  secretary 
of  State,  and  have  no  authority  to  procure  corrected 
returns  or  to  go  behind  the  returns  thus  made,  or  to 
receive  testimony  aliunde  either  to  sustain  or  to  in 
validate  them."1*  As  did  the  State  board  to  reach  the 
pro-Hayes  result,  "they  have  no  right  to  reject  any 
returns  because  they  beleive  there  was  an  illegal  or 
fraudulent  vote  behind  them." 1J 

The  reasons  for  this  rule  are  patent.  Canvassing 
boards  are  not  courts ;  they  have  no  means  of  investigat 
ing  all  the  facts  incident  to  a  charge  of  illegality  per 
taining  to  the  votes,  or  fraud  or  dishonesty  in  the 
conduct  of  the  election.  Such  questions  are  left  to 
courts  in  quo  warrant  o,  mandamus,  or  proceedings  by 
contest.  The  reason  for  the  enforcement  of  the  rule 
in  the  case  of  the  Florida  State  board  was  pre-eminent. 
A  decision  of  such  questions  can  be  reached  only  after 
the  full  evidence  of  the  facts  has  been  adduced.  There 
can  be  no  evidence  without  witnesses  or  their  duly 

14  15  Cyc.  385,  citing  numerous  authorities;  10  Am.  Eng.  Enc. 
Law,   2nd  ed.,   746,  giving  a  yet  larger  list  of  authorities  formu 
lating   this   long  settled   doctrine;    14    Am.    Eng.    Enc.    Law,     19S, 
note. 

15  6  Am.  Eng.  Enc.  Law,  311,  and  note  2  wherein  are  gathered 
all  the  leading  cases  upon  this  point. 


152  The  Hayes-Tilden  Contest 

taken  depositions.  The  Florida  State  board  had  no 
power  to  command  either.  From  the  very  first  all  of 
its  members  conceded  this  fact,  and  to  escape  it  the 
Republican  members  agreed  that  they  would  receive 
as  evidence  ex  parte  affidavits.  Yet,  admitting  it  had 
not  adequate  power  to  do  what  it  assumed  to  do,  the 
board  plunged  into  a  fierce  investigation  of  the  election 
and  the  conduct  of  the  precinct  officers.  The  result 
was  the  most  farcical  and  disgraceful  canvass  ever  left 
upon  record  by  a  State  board.  It  is  not  strange  that, 
the  excitement  incident  to  the  struggle  having  sub 
sided,  McLin,  the  secretary  of  State,  should  have  said 
under  oath :  "If  the  board  had  acted  in  accordance 
with  the  decision  of  the  supreme  court  of  the  State, 
defining  the  powers  and  duties  of  the  board  in  ref 
erence  to  throwing  out  precincts,  since  rendered,  there 
is  no  question  of  the  fact  that  Mr.  Tilden  would  have 
been  entitled  to  the  vote  of  Florida."16  And  since  the 
opinion  of  which  he  here  speaks,  was  a  mere  re 
statement  of  the  law  as  theretofore  understood  and 
enforced  in  Florida  with  reference  to  throwing  out 
precincts,  if  the  board  had  acted  in  accordance  with 
the  settled  law  of  the  State  there  is  no  question  of  the 
fact  that  Tilden  would  have  been  declared  to  have 
received  the  electoral  vote  of  Florida. 

Following  the  older  decisions,  the  supreme  court  in 
its  judgment  upon  the  facts  brought  before  it  in  the  man 
damus  prosecuted  by  Governor  Drew,  ordered  a  recanvass 
in  accordance  with  the  law  as  expounded  by  the  court. 
This  judgment  was  reached  in  Januar}',  1877,  and 
resulted,  because  it  recognized  the  bona  fide  vote,  in 
establishing  the  election  of  the  Democrats;  but,  as  to 

16  Ho.  Miscl.  Doc.,  No.  31,  pt.  2,  98:  45  Cong.,  3  sess. 


The  Florida  Law  153 

the  Presidential  electors,  it  is  of  most  importance  for 
the  facts  showing  the  actual  jurisdiction  exercised  by  the 
board  and  the  power  which  that  body  assumed  in 
reaching  the  pro-Hayes  report.  The  court  held  that 
the  Florida  election  law  did  not  give  the  State  board 
authority  to  determine  whether  an  election  was  legally 
held  or  the  vote  legally  cast ;  and  pointed  out  that  the 
phrase  "the  true  vote  given"  meant  the  vote  actually 
cast,  as  distinguished  from  the  legal  vote. 

The  interpretation  given  to  the  State  law  by  the 
State  court  both  prior  and  subsequent  to  the  action 
of  the  board  in  this  case,  was  in  common  with  that 
of  the  other  States,  was  in  harmony  with  the  American 
law  upon  this  subject,  therefore;  while  that  of  the 
Commission  was  strained  and  unnatural,  entirely  at 
variance  with  the  spirit  of  the  election  laws  of  this 
country.  Yet  were  it  a  mere  question  as  between  the 
two  interpretations,  the  situation  would  be  less  serious. 
There  is  another  principle,  to  ignore  which  is  to  sub 
vert  a  most  vital  factor  in  the  government  as  under 
stood  and  enforced  in  America,  by  which  the  decision 
of  the  Commission  must  also  be  measured.  As  early 
as  1847  the  Supreme  Court  of  the  United  States  laid 
down  this  axiom  of  our  government  thus :  "The  Su 
preme  Court  of  the  United  States  will  always  feel 
itself  bound  to  respect  the  decisions  of  the  State 
courts,  and  from  the  time  they  are  made  will  regard 
them  as  conclusive  in  all  cases  upon  the  construction 
of  their  own  constitution  and  laws." 1T  On  January 

17  Rowan  vs.  Runnels,  5  How.  139;  Webster  vs.  Cooper,  14 
Howard,  488;  Darlington  vs.  Jackson  county,  101  U.  S.  688, 
note;  Marshall  vs.  Ladd,  131  U.  S.  LXXXIX.  Appx.;  Enfield 
vs.  Jordan,  119  U.  S.  680;  McElvaine  vs.  Brush,  142  U.  S. 
155,  are  a  few  of  the  leading  cases  announcing  this  unquestioned 
rule. 


154  The  Hayes-Tilden  Contest 

18,  1909,  Mr.  Justice  Day,  delivering  the  unanimous 
opinion  of  the  Supreme  Court  of  the  United  States  in 
Palmer  vs.  Texas,  the  well  known  Waters-Pierce  Oil 
Company  case,  where  the  construction  of  a  local  law 
by  the  State  court  was  directly  involved,  said:  "The 
Texas  courts  have  a  right  to  construe  their  own 
statutes,  and  their  judgment  in  such  matters  is  con 
clusive  upon  the  Federal  courts."  212  U.  S.  118,  131. 
The  leading  and  earlier  decisions  to  the  same  effect 
have  been  cited  not  only  often  since  by  the  Supreme 
Court  of  the  United  States,  but  hundreds  and  hun 
dreds  of  times  by  State  and  inferior  courts  all  over 
this  country.  This  rule  obtains  in  all  the  relations 
involving  the  powers  of  the  State  and  Federal  govern 
ments.  There  is  but  one  exception,  and  that  is  in 
respect  to  commercial  law  and  general  jurisprudence.18 
The  exception  most  certainly  has  no  place  in  deter 
mining  the  powers  of  the  State  canvassers,  all  parties 
agreed.  The  rule  is  so  well  recognized  and  so  wise  in 
its  operation  that  the  decision  of  the  State  court  con 
struing  statutes  of  the  State  is  followed  even  where 
in  a  subsequent  case  the  same  court  uttered  doubt  as 
to  the  correctness  of  the  construction. 19  Not  only 
had  there  been  no  doubt  expressed  by  the  highest 
court  of  Florida  as  to  its  construction  of  the  statute 
governing  the  election  canvassers,  but  the  construction 
given  at  an  earlier  day  had  been  confirmed  in  the 
same  case  being  heard  by  the  Commission.  And  so 
vital  to  the  American  government,  a  government  in 
which  each  State  is  as  real  and  sovereign  in  its  sphere 

"Presidio    county,    Texas,    vs.    The    Noel- Young,    &c.    (1909), 
212   U.    S.    58,    73,   and  authorities. 

19  Waggoner  vs.  Flack  (1903),  188  U.  S.  600,  and  authorities. 


The  Florida  Law  155 

as  the  United  States  is  in  its,20  that  in  questions  of  State 
law  within  the  sphere  of  the  State,  the  Federal  gov 
ernment  accepts  the  construction  given  by  the  highest 
court  of  a  State  to  a  statute  in  determining  whether 
the  statute  violates  the  Federal  Constitution.21 

Let  no  one  make  the  mistake  of  thinking  that  the 
rules  and  principles  recognizing  the  conclusiveness 
of  constructions  of  local  statutes  by  State  courts,  are 
applicable  only  to  litigation  coming  before  the  Supreme 
Court  of  the  United  States.  The  constructions  by  the 
State  court  were  no  less  binding  upon  the  Commis 
sion,  because  "the  construction  given  to  the  statute  of 
a  State  by  the  highest  judicial  tribunal  of  such  State 
is  regarded  as  a  part  of  the  statute,  and  is  as  bind 
ing  as  is  the  text." 22  This  is  true  because  it  is  the 
construction  that  makes  a  law,  a  constitution,  or  any 
instrument,  what  it  is;  in  other  words,  a  law  is  only 
what  that  power  enforcing  it  construes  it  to  be.  Con 
struction  by  the  Commission,  a  body  representing,  and 
having  no  power  or  authority  not  possessed  by,  "the 
two  Houses  acting  separately  or  together,"  divested  the 
State  of  that  exclusive  and  absolutely  independent  con 
trol  over  the  manner  of  choosing  her  electors  that  was 
and  is  one  of  the  chief  characteristics  of  the  dual 
American  government. 

80  Ewing,  Legal  and  Historical  Status  of  the  Dred  Scott  Deci 
sion,  9  et  seqr. 

^Tullis  vs.  Lake  Erie  &  W.  R.  Co.,  175  U.  S.  348,  353; 
Cargill  vs.  Minn.,  180  U.  S.  452. 

23  Leffingwell  vs.  Warren,  2  Block,  599;  Douglas  vs.  Pike 
county,  lOi  U.  S.  677;  111.  C.  R.  Co.  vs.  111.,  163  U.  S.  142; 
Taylor  vs.  Ypsilanti,  105  U.  S.  60,  widely  cited  with  approval 
and  as  authority;  are  but  a  few  of  the  many  decisions  resting 
upon  this  rule. 


IX. 

The  Returns  and  the  Canvass. 

NOVEMBER  27,  1876,  broke  in  splendid  quiet 
over  the  little  capital  at  Tallahassee.  But 
its  citizens  and  numerous  guests  were  rest 
less  and  anxious.  A  notable  crowd  gathered 
about  the  little  chamber  in  which  the  State  canvassing 
board  was  about  to  begin  opening  and  counting  the 
returns.  Here  and  there  the  blue  uniform  of  a  Federal 
soldier  reminded  the  Democrats  that  President  Grant 
had  the  army  marshalled  at  strategic  points  through 
out  the  South.  By  order  of  Governor  Stearns  part  of 
these  Federal  troops  were  placed  about  the  State 
house  while  the  canvassing  board  was  in  session.1 
It  was  not  the  first  time  Grant  had  thrust  the  bayonet 
into  the  civil  affairs  of  the  Southern  States ;  and  few 
Southerners,  at  least,  had  any  doubt  as  to  which  side 
the  army  would  take  should  the  Republicans  decide 
that  their  cause  needed  the  roar  of  cannon  to  insure 
success.  That  the  Republicans  meant  to  inaugurate 
Hayes,  right  or  wrong,  else  precipitate  a  real  civil  war! 
there  can  be  no  reasonable  doubt.  The  Republicans 
of  the  canvassing  board,  McLin  afterwards  testified, 
had  been  assured  of  the  "forthcoming  of  money  and 
troops  if  necessary  in  securing  the  victory  for  Mr. 
Hayes."  2 

Civil   victory    is    cheaper   than   the   trophies    of   war; 
and  therefore  Republican  leaders  had  determined  upon 

iHo.  Miscl.  Doc.  No.   31,  pt.   2,  p.   147:   45   Cong.,  3rd  sess. 

8Ib.  98. 

156 


The  State  Canvass  15? 

the  most  terrific  civil  battle  in  American  history.  Not 
content  to  leave  Florida  to  determine  quietly  and  in 
her  own  way  the  result  of  the  election;  unwilling  to 
trust  the  two  Republicans  of  the  three  members  of  the 
canvassing  board,  at  President  Grant's  suggestion  prom 
inent  men,  some  holding  important  Federal  offices,  from 
every  quarter  were  sent  to  lend  moral  support ;  and 
astute  lawyers,  skilled  in  the  subleties  of  legal  tech 
nicalities,  went  to  seize  upon  every  available  point  of 
the  law.  So  the  little  room  in  which  the  board  first 
began  its  work  was  not  ample:  many  visitors  and 
residents  were  unable  to  find  .space  inside,  and  a  con 
siderable  crowd  gathered  in  the  corridors  and  about 
the  building  to  await  results.  General  Lew  Wallace 
and  Governer  Noyes  of  Ohio  were  present  and  acting 
as  leaders  for  the  Republicans.  It  was  made  known 
that  Noyes  particularly  represented  Hayes  and  "spoke 
with  the  authority  of  a  warm  personal  friend  com 
missioned  with  power  to  act  in  his  behalf."  They  were 
supported  by  General  F.  C.  Barlow  and  William  E. 
Chandler  from  New  York,  Attorney-General  Little  of 
Ohio,  J.  P.  C.  Emmons,  H.  Bisbee,  Jr.,  Ampt,  cor 
respondent  for  the  Cincinnati  Commercial;  D.  W. 
Sellers,  a  leading  lawyer  of  Philadelphia,  and  others 
took  an  active  part  on  behalf  of  the  Republicans.  The 
Democrats,  equally  ardent  and  bravely  undaunted,  were 
forced  to  follow  the  Republican  initiative,  and  in  their 
voluntary  presence  the  Democrats  found  able  advocates 
and  splendid  legal  ability  in  such  men  as  G.  W. 
Biddle  of  Philadelphia,  Governor  Joseph  E.  Brown 
of  Georgia,  the  Brilliant  Manton  Marble,  editor  of 
the  New  York  World;  George  P.  Raney,  Levitt  Salton- 
stall,  Malcolm  Hay,  P.  Pasco,  Robert  L.  Campbell,  and 


158  The  Hayes-Tilden  Contest 

others — in  all  of  both  sides  about  thirty  active  lawyers 
and  participants ! 3  Eagle-eyed  and  vigorously  alert, 
these  men  of  ability,  many  enjoying  national  reputa 
tions,  scrutinized  every  act  and  word  of  Attorney- 
General  Cocke,  Secretary  of  State  Samuel  McLin,  and 
Comptroller  Cowgill,  the  State  board  of  canvassers, 
as  they  opened,  read,  and  then  for  days  proceeded  to 
canvass  the  returns  sent  in  from  the  county  boards 
and  on  file  in  the  office  of  the  .secretary  of  State.  A 
remarkable  assembly  which  left  for  us  a  most  wonder 
fully  interesting  record  of  its  proceedings! 

Writing  of  that  memorable  canvass  shortly  there 
after,  General  Lew  Wallace,  who  took  part  therein 
for  the  Republicans  at  the  request  of  Hayes,4  said; 
"I  doubt  if  in  any  State  or  county  such  a  trial  was  ever 
witnessed;  and  yet  throughout  there  was  not  a  dis 
courteous  word ;  while  the  deportment  of  the  board 
was  the  theme  of  common  remark  and  compliment."6 

What  did  this  important  body,  more  excited  than 
honored,  as  the  sequel  proved,  by  the  presence  of  such 
a  bar,  find  in  the  several  sealed  returns  as  they  were 
opened? 

Having  organized,  the  board  adopted  rules,  one  of 
which  is  as  follows : 

"The  Secretary  of  State  shall  open  the  returns  from 
each  county,  whereupon  the  board  will  proceed  to 
examine  the  same,  and  determine  from  the  face  thereof 
subject  to  final  review,  whether  the  legal  formalities 
and  requirements  with  respect  thereto  have  been  com- 

s  Sen.  Rep.  No.  611,  Arguments,  pp.  18,  104,  462,  463,  466: 
44  Cong.,  2nd  sess. 

4  Ho.   Miscl.  No.  31,   138;   45  Cong.,  3rd  sess. 
8  Autobiography,    905. 


The  State  Canvass  159 

plied  with;  and  upon  an  affirmative  determination  of 
such  matters,  the  chairman  shall  announce  the  vote 
of  the  county."0 

This  rule  embodied  the  contentions  of  the  Demo 
crats  as  to  the  jurisdiction  of  the  board.  Had  it  been 
followed,  the  result  reached  would  have  reflected  the 
will  of  the  State.  But  to  have  followed  it  would  have 
given  the  State  to  Tilden;  and  therefore  the  Hayes 
influence  brought  such  weight  to  bear  upon  the  board 
as  induced  it  to  believe  that  it  had  jurisdiction  to  hear 
and  determine  a  contest  concerning  the  returns  or  any 
part  thereof  from  any  county.  This  position  of  the 
board  led  to  the  adoption  of  another  rule  authorizing 
contests  for  any  cause  or  upon  any  ground,  however 
regular,  however  in  conformity  with  the  legal  formali 
ties  and  requirements,  the  questioned  returns  upon  their 
face  appeared  to  be.  Contestants  were  permitted  to 
submit  evidence  tending  to  impeach  any  return  upon 
ground  entirely  beyond  the  question  as  to  whether  the 
county  boards  had  properly  and  correctly  returned  the 
votes  as  reported  from  the  precincts ;  and  thus  was 
opened  up  an  inquiry  which  led  to  an  investigation  of 
the  conduct  of  the  election  itself  at  the  precincts. 
Biddle  of  Philadelphia  led  the  Democratic  fight  against 
this  assumption  of  power  by  the  board  ;7  and  the  Demo 
crats  generally  pointed  out  that,  aside  from  an  inter 
pretation  of  the  statute  under  which  the  board  was  act 
ing,  a  contest  of  such  a  broad  and  far  reaching  nature 
was  ultra  vires  as  shown,  among  other  things,  by  the 
fact  that  the  board  had  no  power  to  compel  witnesses 
to  attend  or  to  testify.  Power  to  hear  such  contests 

8  Sen.  Rep.  611,  3:  44  Cong.,  2nd  sess. 

THo.  Miscl.  No.  31,  pt.  2,  137:  45  Cong.,  3rd  sess. 


160  The  Hayes-Tilden  Contest 

belongs  to  the  jurisdiction  of  the  regularly  established 
courts  in  which  rests  the  power  to  compel  the  at 
tendance  of  witnesses  and  to  enforce  the  proper  testi 
mony.  Admitting  its  limitations,  yet  undaunted,  the 
board  promulgated  another  rule  which  provides  that, 
"in  view  of  the  fact  that  the  board  has  no  power  to 
compel  the  attendance  or  examination  of  witnesses, 
it  will  receive  in  evidence  any  proper  affidavits"  bear 
ing  upon  any  questions  concerning  either  the  returns 
or  the  election.8  This  rule,  an  admission  that  the 
board  was  about  to  go  beyond  its  legal  jurisdiction, 
opened  the  way  for  a  batch  of  rottenness  most  dis 
graceful. 

From  the  early  part  of  the  board's  session  up  to 
the  evening  of  December  4,  they  received  evidence  and 
counter-evidence,  mostly  ex  farte  affidavits,  and  heard 
written  arguments  by  the  lawyers.  Every  function  of  a 
court  was  assumed  in  covering  this  sweeping  field. 
Cowgill,  the  Republican  comptroller,  was  correct  when 
later  before  an  investigating  committee  of  Congress 
he  on  oath  said:  "We  exercised  judicial  functions."9 

McLin,  Republican  secretary  of  State,  affirmed  that 
the  returns  had  been  kept  by  him  under  lock  and  key 
just  as  he  had  received  them  from  the  several  county 
returning  boards,  and  that  no  one  except  himself  had 
had  access  to  his  files.10  Beginning  with  the  counties 
in  alphabetical  order,  he  opened  and  read  the  papers 
from  each  county.  From  the  minutes  of  the  board's 
meeting  which  were  made  by  a  stenographer,  and 
which  are  given  in  full  in  Senate  Report  number 

8  Sen.   Rep.   611,   4:    44    Cong.    2nd  sess. 

•Ib.  5. 

10  Ib.  428. 


The  State  Canvass  161 

six  hundred  and  eleven,  forty-fourth  Congress,  second 
session,  we  learn  what  occurred  as  the  work  progressed. 

The  first  return  read  that  was  questioned  was  from 
Baker  county.  McLin  opened  a  paper  and  read  there 
from  one  hundred  and  thirty  Hayes  and  eighty-nine 
Tilden  votes.  The  Democrats  at  once  challenged  this 
report.  Said  the  speaker:  "We  give  notice  that  we 
shall  contest  that  return  as  fraudulent."  "We  have  a 
certified  copy  of  returns  from  Baker  county  which 
are  entirely  and  absolutely  different."11  The  reading 
then  proceeded  quietly  until  Clay  county  was  reached. 
With  the  returns  the  county  board  reported  from  pre 
cinct  number  8,  number  n  poll,  "that  there  was  no 
evidence  of  the  inspectors  of  the  election  being  sworn, 
or  that  the  clerk  was  sworn ;"  and  that  the  vote  from 
said  precinct  was  29  for  Tilden  and  6  for  Hayes, 
"which  we  did  not  count  in  our  return."  12 

The  report  from  Duval  county  was  signed  by  the 
clerk  and  a  justice,  it  appearing  upon  the  face  of  the 
paper  that  the  judge,  the  third  member  of  the  county 
board,  had  refused  to  sign  that  report  of  the  can 
vassers.  The  Democrats  contested  on  the  ground  that 
this  upon  its  face  was  not  lawful  or  proper  returns. 
Then  McLin  announced  the  votes  as  therein  certified 
as  2,367  for  Hayes  and  1,437  for  Tilden.  The  reading 
and  the  announcement  of  the  votes  then  went  on  with 
out  incident,  now  and  then  one  side  or  the  other,  with 
out  apparent  cause  and  without  suggesting  any  ground, 
simply  announced  a  contest  of  the  vote  as  reported, 
until  Manatee  county  was  reached.  At  once  Martin, 

nib.  417. 
13  Ib.  418. 


162  The  Hayes-Tilden  Contest 

for  the  Republicans — it  was  well-known  that  the  county 
was  largely  Democratic — arose  and  announced : 

"We  contest  the  whole  return  from  Manatee  because 
we  understand  there  was  no  clerk  of  the  county,  no 
sufficient  notice  of  the  election,  no  registration  lists 
for  the  voters  to  vote  on,  and  there  were  other  ir 
regularities  ;  *  *  * " 

To  this  McLin  replied :  "As  there  is  nothing  ap 
pears  on  the  face  of  the  return  indicating  what  has 
been  alleged,  we  deem  it  proper  to  read  it,  under  the 
rule  established;"  and,  there  being  no  further  ob 
jection,  announced  26  Hayes  and  262  Tilden  votes.13 

Before  announcing  the  votes  of  Orange  county  McLin 
said:  "I  will  mention  the  fact  that  the  return  from 
Orange  county  does  not  state  from  what  county  it 
comes.  It  is  signed  by  'William  Mills,  county  judge, 
Orange  county,'  and  that  is  the  only  place  that  in 
dicates  that  the  return  comes  from  Orange  county." 
No  one  objected  or  challenged  the  return,  and  its  vote 
was  announced.14 

Without  further  incident  the  returns  from  the  vari 
ous  counties  were  concluded.  As  thus  read,  "by  what 
appeared  upon  their  face,"  as  General  Barlow  and 
others,  notably  General  Wallace,18  have  testified,  the 
added  figures  gave 

Hayes 24.527 

Tilden 24.28716 

The  Republicans   lost  not  a  moment  in  establishing 

"Ib.  420. 

"Ib.  421. 

18  Autobiography,   904. 

18  Sen.    Rep.    611,   pt.    4,    13:    44    Cong.,    2nd   sess. 


The  State  Canvass  163 

the  first  impression  upon  the  public  mind:  without 
waiting  to  see  the  outcome  of  the  charge  that  the 
return  as  read  from  Baker  county  was  fraudulent,  the 
Republicans  wired  their  newspapers  and  party  leaders 
that  "upon  the  face  of  the  returns  Hayes  has  a  ma 
jority  of  the  electoral  votes  of  Florida."  Before  night 
this  impression  had  been  implanted  upon  the  mind  of 
every  person  who  read  the  evening  papers;  and  on 
down  through  the  years  the  false  cry  has  been  caught 
up  by  writers. 

The  snake  lay  coiled  in  the  returns  from  Baker 
county  as  read  by  McLin.  Hissing  it  raised  its  yellow 
head  menacingly  when  the  Democrats  assaulted  its 
hiding  place.  The  battle  which  followed  the  assault 
as  we  find  it  pictured  in  the  original  record  left  in 
the  minutes  of  the  board,  of  no  little  historical  value, 
is  well  worth  following. 

Having  read  the  returns  as  produced  by  McLin,  the 
board  took  a  recess ;  and  on  re-convening  Pasco,  for  the 
Democrats,  said: 

"If  the  board  please,  before  we  enter  upon  any  pro 
ceedings  this  afternoon  we  desire  to  have  the  returns 
from  Baker  county  re-read  and  a  mistake  noted,  and 
to  ask  if  there  are  any  other  returns  from  Baker 
county  in  the  office  of  the  secretary  of  State." 

To  this  Martin  replied :  "The  only  return  received 
has  been  read,  I  presume."  But  McLin  at  once  said : 
"There  are  other  papers  from  Baker  county."  Chandler 
saw  the  danger  and  interposed:  "I  suppose  there  are 
many  papers,  are  there  not,  of  various  kinds,  affidavits 
and  others,  returned  to  the  secretary's  office?"  McLin 
answered:  "Oh,  yes;  there  are  quite  a  number  of 
affidavits,  and  other  evidence,  and  papers  of  different 


164  The  Hayes-Tilden  Contest 

characters  produced."  Again  Chandler  tried  to  escape 
what  he  foresaw,  but  Pasco  pressed  the  question : 

"Now,  has  there  been  any  other  paper  purporting  to 
be  a  return  from  Baker  county  received?  If  so,  it  will 
be  in  accordance  with  the  proceedings  of  the  board 
under  the  rule  to  have  it  read.  I  understand,  from  the 
proceedings  this  morning,  that  all  returns  should  first 
be  read  over.  I  ask  if  they  are  all  read  over?" 

Again  McLin  dodged:  "We  have  read  all  the  re 
turns  except  from  one  county — Dade."  (The  D'ade 
county  returns  were  received  later  in  the  session.) 
But  Pasco  would  not  down ;  again  he  put  the  pointed 
question:  "Is  there  another  return  from  Baker  county?" 
This  time  McLin  replied:  "As  I  understood,  the  board 
decided  that  this  paper  was  not  a  true  return." 

Which  paper?  When  had  the  board  so  decided? 
No  other  paper  from  Baker  county  than  the  one  McLin 
first  read  had  been  before  the  board,  and  most  surely 
no  decision  of  the  board  had  been  made  at  that  time 
upon  the  nature  of  any  paper  purporting  to  be  a  re 
turn,  and  this  McLin  himself  was  shortly  forced  to  ad 
mit  when  he  said,  "The  board  has  taken  no  final  action 
as  to  anything." 

Yet  the  Republicans  hesitated  and  Pasco  prodded 
them  with  their  own  rule,  reading  the  clause  which 
requires  "the  secretary  of  State  shall  open  the  returns 
from  each  county,"  upon  which  he  observed:  "Now,  I 
understand  that  there  is  another  return  here  from 
Baker  county,  which  has  not  yet  been  submitted  to  the 
board,  and  that  this  rule  is  violated.  The  point  I  make 
is  that  this  return  should  be  opened  and  submitted 
and  that  we  should  have  an  opportunity  to  see  what 
it  is  before  we  proceed.  Now,  if  we  are  rightly  in- 


The  State  Canvass  165 

formed,  there  is  another  return  which  has  not  been 
opened,  and  the  board  has  not  proposed  to  examine 
the  same,  and  determine  from  the  face  thereof  whether 
the  legal  formalities  have  been  complied  with.  That 
is  the  rule  adopted,  and  it  relates  to  this  particular 
instance,  if  my  information  is  correct.  My  proposition 
is  simply  that  this  rule  be  carried  out,  and  that  we 
may  have  all  these  papers  purporting  to  be  returned 
here  before  us  before  we  go  on." 

Again  Chandler  and  Martin  attempted  to  avert  the 
blow,  but  General  Cocke  interposed,  and  before  he 
had  concluded  McLin  surrendered,  admitting  that  there 
were  "two  other  papers  purporting  to  be  returns  from 
Baker  county."  He  then  read  one  of  these  dated  No 
vember  10,  1876,  and  signed  M.  I.  Coxe,  clerk  of  the 
circuit  court  of  Baker  county,  and  John  Dorman,  jus 
tice  of  the  peace,  which  gave  the  electoral  vote  as 
238  for  the  Tilden  electors  and  143  for  the  Hayes 
electors.  He  then  read  the  other  paper  which  was 
dated  November  13,  1876,  signed  by  the  same  parties, 
and  recertifying  to  the  same  vote.17 

How  farreaching  the  difference  between  the  first  re 
turn  as  read  by  McLin,  known  as  the  Driggers  return, 
and  the  others — more  properly  other,  as  the  latter  are 
duplicates  except  as  to  dates — known  as  the  Coxe  re 
turns  !  Which  was  the  more  regular  on  its  face?  On 
what  ground  did  McLin  read  the  Driggers  return  rather 
than  the  Coxe  certificate  until  forced  to  do  so  by  the 
Democrats?  The  use  of  the  Coxe  return  gave  the 
State  unquestionably  to  Tilden  upon  the  face  of  the 
returns,  as  was  conceded  by  General  Wallace  under 
oath  before  the  investigating  committee  which  later 

17  Ib.  423,  424. 


i66  The  Hayes-Tilden  Contest 

made  an  inquiry  at  the  instance  of  Congress.18  The 
truth  of  this  fact  cannot  be  successfully  questioned. 
Hence,  so  far  as  the  face  of  the  returns  is  concerned, 
as  to  who  was  shown  to  be  elected  thereby,  depends 
entirely  upon  which  return  from  Baker  county  is  ac 
cepted. 

It  is  certain  that  McLin  knew  the  contents  of  both 
the  Driggers  and  the  Coxe  papers18,  for  we  may  treat 
them  as  but  two  returns,  although  there  were,  as  we 
have  seen,  two  of  the  Coxe  certificates,  alike  in  all 
respects  except  their  dates.  All  of  these  documents 
were  on  file  in  the  office  of  the  secretary  of  State,  and 
all  were  present  when  he  selected  and  read  the  Driggers 
return  in  preference  to  that  by  Coxe.  The  Coxe  re 
turns  were  entirely  regular  upon  their  face;  and  the 
only  point  that  the  Republicans  made  against  them 
was  that  but  two  officers  had  signed :  M.  I.  Coxe,  clerk 
of  the  circuit  court  of  Baker  county;  and  John  Dor- 
man,  a  justice  of  the  peace  of  that  county.20  The  same 
was  true  of  the  returns  from  Duval,  showing  a  county 
majority  for  the  Republicans.  The  Driggers  return 
was  signed  by  E.  W.  Driggers,  county  judge  of  Baker 
county;  Andrew  Allen,  sheriff;  and  William  Green,  a 
justice  of  the  peace.  The  Republicans  claimed  that  the 
Driggers  return  was  "more  regular  on  its  face,"  the 
"most  regular  under  the  law,"  as  General  Wallace  ex 
pressed  it  in  his  evidence,  and  upon  this  one  ground 
they  justified  its  use  rather  than  the  other.  Was  this 

"Ho.  Miscl.  Doc.  No.  31,  pt.  2,  pp.  103,  104,  514,  515:  45 
Cong.,  3rd  sess. 

"Ib.   105. 
20  Ib.   104. 


The  State  Canvass  167 

contention  well  founded?  In  fact,  had  this  claim  any 
justification  whatever? 

The  law  creating  the  county  canvassing  board  and 
defining  its  duties  is  found  in  section  24  of  the  act 
approved  August  6,  1868.  The  amendment  of  the  law 
passed  in  1872  did  not  change  or  attempt  to  change 
this  statute  of  1868  in  respect  to  the  county  canvassing 
board.  So  the  law  under  which  the  county  boards 
made  the  returns  of  the  election  of  1876  required  that 
"on  the  sixth  day  after  any  election  or  sooner  if  the 
returns  shall  have  been  received,"  the  county  judge 
and  the  clerk  of  the  circuit  court  shall  meet  at  the 
office  of  the  circuit  clerk,  take  to  their  assistance  a 
justice  of  the  peace,  and  "publicly  canvass  the  votes" 
"as  shown  by  the  returns  on  file  in  the  office  of  such 
clerk  or  judge."  The  preceding  section  of  this  act 
requires  the  inspectors  and  clerk  of  the  election  at  the 
several  polling  places  in  each  county,  the  polls  having 
been  closed,  to  canvass  the  votes,  and  make  and  sign 
duplicate  certificates  showing  the  result.  One  of  these, 
"without  delay,  securely  sealed,"  must  "be  delivered  to 
the  clerk  of  the  circuit  court,  and  the  other  to  the 
county  judge  of  the  county."  Hence,  the  county  board 
was  authorized  to  canvass  "the  returns  on  file  in  the 
office  of  such  clerk  or  judge,"  as  they  preferred.21 

Now  the  only  question  as  between  the  D'riggers  and 
the  Coxe  returns  was  as  to  which  was  the  more  regular 
in  its  signatures.  Driggers  was  the  county  judge;  he 
had  in  his  possession  one  of  the  duplicate  certificates, 
and  was  one  of  the  men  authorized  by  the  law  to  make 
the  county  canvass.  Coxe  was  clerk  of  the  circuit;  he 
had  in  his  possession  the  other  certificate,  and  was  also 

»Laws  of  1868,  p.  7. 


i68  The  Hayes-Tilden  Contest 

one  of  the  men  authorized  to  make  the  canvass.  Each 
had  associated  with  him  in  what  he  claimed  to  be  a 
correct  and  authentic  canvass,  a  justice  of  the  peace, 
another  officer  also  authorized  to  assist  in  the  canvass. 
Thus  far  the  certificate  of  neither  had  any  advantage. 

The  third  signature  on  the  Driggers  return  was  that 
of  the  sheriff.  The  law  provided  that  the  sheriff 
should  act  on  the  board  only  in  case  of  the  "absence, 
sickness,  or  other  disability  of  the  county  judge  or 
clerk."  Nothing  on  or  about  the  Driggers  return  in 
dicated  the  absence,  sickness,  or  other  disability  of 
the  clerk;  but  right  by  the  side  of  the  Driggers  paper 
lay  two  other  documents,  one  of  which  bore  the  same 
date  as  that  of  the  Driggers  return,  signed  by  the 
clerk,  prima  facie  evidence  that  the  absence  of  the 
clerk's  signature  from  the  Driggers  paper  was  not 
the  result  of  disability  on  his  part.  No  prima  facie 
ground  was  shown,  and  in  fact  no  ground  existed,  which 
either  justified  or  excused  the  action  of  the  sheriff  in 
the  canvass,  and  which  gave  his  signature  any  author 
ity.  The  paper  made  no  effort  whatever  to  show  why 
the  sheriff  had  acted,  or  to  justify  his  signature  along 
with  the  others.22  On  the  face  of  the  paper  the  sheriff's 
signature  gave  it  no  more  weight  or  validity  than 
would  have  been  given  had  any  other  person  signed, 
being  a  non-member  of  the  board.  As  to  the  parties 
authenticating  the  instruments  there  was  nothing  which 
rendered  the  Driggers  paper  any  more  in  conformity 
with  the  law  than  was  either  of  the  others. 

The  Coxe  report  had,  however,  important  prima  facie 
evidence  in  its  favor.  The  county  board  of  canvassers 
was  required  by  the  law  to  make  duplicates  of  their 

88  Ho.  Miscl.  Doc.  31,  pt.  2,  105,  106:  45  Cong.,  3rd  sess. 


The  State  Canvass  169 

report,  one  of  which  must  be  "immediately  transmitted 
by  mail  to  the  secretary  of  State,  and  the  other  to  the 
governor  of  the  State."23  Both  of  the  Coxe  returns 
reached  the  secretary  of  State,  as  he  frankly  admitted, 
in  due  course  of  mail ;  but  the  Driggers  return  did  not 
so  reach  him.  Before  a  subsequent  investigating  com 
mittee  McLin  stated  on  oath  that  this  Driggers  report 
which  he  read  and  which  he  at  first  presented  as  the 
true  and  only  return  from  Baker  county,  was  handed  to 
him  by  Governor  Stearns  in  person.24  Governor  Stearns 
had  no  authority  whatever  for  such  action — he  never 
claimed  any;  when  the  act  was  done  it  was  supposed 
that  the  fact  would  never  reach  the  public.  But  McLin 
knew  the  truth  at  the  time  he  presented  the  Driggers 
report  to  the  board;  and  both  he  and  Stearns  knew 
the  contents,  knew  that  it  omitted  two  of  the  four  pre 
cincts  of  the  county.  Upon  the  face  of  the  papers  the 
board  had  notice  that  the  one  paper  had  reached  the 
secretary  as  required  by  law  and  that  the  other  had 
not.  Being  prima  facie  equal  in  other  respects,  nothing 
short  of  a  deliberate  purpose  to  mislead  the  public  as 
to  the  true  showing  on  the  face  of  the  returns,  could 
have  induced  sensible  men  to  use  a  paper  received 
through  an  illegal  channel  as  against  two  others,  upon 
their  face  regular  and  of  equal  dignity  of  authentica 
tion,  received  in  the  legal  way  and  which  upon  their 
face  showed  the  total  vote  of  the  county. 

Therefore,  the  Coxe  returns  were  the  more  regular 
under  the  law,  and  undoubtedly  should  have  been  taken 
rather  than  the  Driggers  report  in  finding  the  result 
of  all  the  returns  upon  their  face.  This  done,  the 

28  Laws  of  1868,  p.   7. 

*Ho.  Miscl.  Doc.  31,  122,  123. 


170  The  Hayes-Tildcn  Contest 

Tilden  electors  have  a  larger  majority  than  that  claimed 
for  Hayes  by  the  use  of  the  Driggers  figures.  It  is 
entirely  untrue,  therefore,  that,  when  "the  secretary  of 
State  of  the  State  of  Florida  laid  before  the  canvass 
ing  board  the  returns  of  the  votes  for  electors  from 
all  the  counties  of  the  State,"  a  "count  of  the  gross 
vote,  before  any  canvass  was  made  by  the  board,  be 
fore  any  vote  was  rejected  or  any  correction  was  made," 
showed  "that  the  Hayes  electors  had  43  majority  over 
the  Tilden  electors,"  as  Commissioner  Garfield  claimed 
for  the  returns  upon  their  face.25  He  had  the  minutes 
of  the  board  before  him,  and  he  must  have  known  that 
this  claim  for  Hayes  was  possible  only  by  rejecting  the 
Coxe  returns  from  Baker  county;  he  must  have  known 
that  this  conclusion  was  possible  only  by  refusing  to 
consider  all  the  returns  that  were  actually  before  the 
board, — a  result  based  upon  a  document  which  had  no 
prima  facie  support,  and  that  had  come  to  the  board 
through  the  illegal  collusion  of  the  governor  and  the 
secretary  of  State. 

The  question  which  the  Coxe  and  the  Driggers  re 
turns,  presented,  was  the  single  instance  within  the  jur 
isdiction  of  the  board  where  evidence  was  necessary 
or  properly  receivable  to  determine  which  was  the 
true  return  and  should  be  counted.  /  Comparing  the 
two  certificates  with  the  precinct  returns  in  order  to 
determine  the  vote  that  had  actually  been  cast,  the 
board  saw  at  once  that  the  Coxe  return  corresponded 
exactly  with  the  returns  on  file  in  the  clerk's  officey 
The  Republicans  themselves  did  not  question  in  this 
canvass  the  genuineness  and  authenticity  of  the  Baker 
county  precinct  returns;/ and  no  evidence  could  be 

25  Proceedings,  959. 


The  State  Canvass  171 

found  to  support  the  Driggers  paper.  It  was  shown 
before  the  State  board  that  when  the  Coxe  canvass  of 
the  I3th  was  made,  Driggers  had  been  summoned  by 
the  clerk  to  appear  at  his  office  for  the  purpose  of 
canvassing  the  precinct  returns.  When  the  canvass 
dated  on  the  loth  was  made  by  Coxe  and  Dorman, 
Driggers  had  merely  been  verbally  requested  to  appear 
at  that  time  and  participate  in  the  canvass;  but  as  he 
did  not  appear  Coxe  feared  that  the  verbal  summons 
might  be  held  insufficient,  and  therefore  he  served  a 
written  summons  requesting  Driggers  to  appear  at  the 
clerk's  office  for  the  purpose  of  participating  in  the 
canvass  made  on  that  day.  But  Driggers  had  entered 
into  collusion  with  leading  Republicans  of  Florida  to 
falsify  the  Baker  county  vote  that  there  might  be  made 
a  prima  facie  case  upon  the  face  of  the  returns  for 
Hayes.  For  that  reason  alone  Driggers  wilfully  re 
fused  to  participate  in  either  canvass  made  by  the  clerk 
and  a  justice. 

Governor  Stearns  co-operated  to  bring  about  the  Drig 
gers  fraud.  On  the  loth,  Dorman,  who  canvassed  with 
Coxe,  was  the  only  justice  in  the  county.  The  con 
spirators  needed  a  new  justice;  Driggers  went  to 
Stearns  with  the  plan,  told  him  why  he  wanted  an 
other  justice,  and  forthwith  one  Green  was  commis 
sioned.28  Stearns  having  issued  the  commission,  Drig 
gers  sent  it  to  Green  and  summoned  him  to  appear 
at  the  county  seat  on  the  I3th.  Instead  of  joining  Coxe, 
as  he  had  been  requested  to  do,87  Driggers  and  Green 
went  to  the  clerk's  office  "at  very  nearly  night,  if  not 
quite,"  "about  dark,"  Driggers  himself  on  oath  tells  us ; 

*  House  Miscl.  Doc.  31,  pt.  2,  33:  45  Cong.,  3rd  sess. 
36;  Ho.  Kept.  611,  240. 


i;2  The  Hayes-Tilden  Contest 

and  the  two  were  let  into  the  clerk's  office  by  a  deputy 
clerk.  Without  an  effort  to  have  Clerk  Coxe  present, 
Driggers  and  the  new  justice  and  the  sheriff  looked 
over  the  returns  and  then  "went  over  to  Mr.  Canova's 
and  sifted  them  out." 28 

Why  "sift  them  out?"  No  one,  not  even  a  Repub 
lican,  has  ever  claimed  authority  or  jurisdiction  for 
such  work  as  thus  done  by  these  conspirators  under 
cover  of  night,  yet  their  lame  excuse  is  a  matter  of 
some  curiosity.  They  admitted  that  they  found  "the 
precinct  returns  all  right;"  that  all  the  formalities  of 
the  law  had  been  fully  complied  with  as  to  all  returns 
from  each  precinct  in  the  county.  They  had  no  evi 
dence  before  them,  not  even  so  much  as  an  affidavit ; 
they  had  nothing  from  which  to  make  a  certificate 
except  the  precinct  returns.  Of  the  four  precincts  in 
the  county,  two  were  entirely  left  out:  Darbyville  and 
Johnsville.  At  the  latter  place  Tilden  had  been 
given  84  votes  and  Hayes  i./  Driggers  stated  on  oath 
that  he  left  out  this  precinct  on  the  ground  of  intimi 
dation  at  the  election.  When. asked  what  intimidation, 
he  replied,  "They  refused  a  man  his  vote  there." 
Surprised,  his  interrogator  quickly  inquired,  "They  re 
fused  one  man  his  vote  there?"  /"Yes,  sir,"  the  wit 
ness  meekly  replied,  and  then  frankly  admitted  that 
the  only  evidence  he  had  of  what  he  claimed  to  be 
intimidation  was  that  the  man  himself  had  told  him, 
"a  day  or  two  after  the  election;  probably  the  day  of 
the  election.  I  cannot  say  when." "  He  said  he  had 
discarded  the  entire  vote  given  at  Darbyville,  where 
the  Democrats  also  had  a  heavy  majority,  because  he 

28  Doc.  31,  pp.  34,  35. 
^Ib.  44. 


The  State  Canvass  173 

had  seen  some  illegal  votes  cast;  at  first  he  put  the 
number  at  five,  then  qualified  it  to  "some  three  or 
four,  two  or  three,  or  something."  No  other  reason 
whatever  was  claimed  for  discarding  either  precinct.30 
In  fact  the  sheriff  on  oath  admitted  that  they  "just  heard 
it  rumored  around"  that  there  was  intimidation  at  the 
Johnsville  precinct,  adding,  "we  had  no  evidence  before 
us  at  the  time"  of  the  attempted  certification.31 

Upon  this  farcical  ground  the  certificate  was  built 
to  meet  Republican  needs,  then  someone  furnished  the 
arch  traitor  a  railroad  ticket  to  carry  the  pseudo-re 
turns  to  Governor  Stearns,  whereas  the  law  required 
returns  from  the  county  canvassers  to  go  by  mail  to 
the  secretary  of  State.  Martin,  the  chairman  of  the 
Republican  State  committee,  gave  him  at  least  $20.00; 
and  Canova,  at  whose  house  the  returns  were  "sifted," 
added  not  less  than  $15.00.  Whether  Driggers  got 
more  for  the  foul  deed,  he  was  not  able,  when  on  oath, 
to  recall;  though  he  qualified  himself  by  saying,  "I 
suppose  I  might  have  got  more  than  $35.00 !"  3 

It  is,  therefore,  not  strange  that  on  the  canvass  the 
Republicans  admitted  the  Coxe  returns,  counting  the 
votes  as  certified  therein  rather  than  as  returned  by 
Driggers.  However,  when  we  recall  the  part  taken  by 
the  governor,  that  both  Driggers  and  Sheriff  Allen, 
who  acted  in  the  fraudulent  canvass  with  him,  were 
appointees  of  Stearns,83  the  funds  furnished  by  the 
chairman  of  the  Republican  State  committee,  and  the 
tenacity  with  which  McLin  clung  to  the  fraudulent  docu 
ment,  well  knowing  the  source  and  contents  as  he  did 

80  Ib.   45. 

si  Ho.  Miscl.  Doc.  No.  35,  pt.  11,  284:  44  Cong.,  2d  sess. 

82  Doc.  31,  p.  48. 

a3  Ho.  Miscl.  Doc.  No.  35,  294,  297:  44  Cong.,  2nd  sess. 


174  The  Hayes-Tilden  Contest 

of  both  it  and  the  Coxe  returns;  and  the  adroit  dis 
simulation  with  which  Chandler  endeavored  to  hide 
from  the  board  and  the  public  the  Coxe  returns,  we 
realize  something  of  the  guilt  of  the  Hayes  party 
leaders,  both  State  and  National.  But  in  atoning  for 
this  glaring  sin  against  law,  morals,  party,  State,  and 
Nation,  the  State  had  been  given  to  Tilden  as  no  one 
disputed;34  and  so  the  State  board  sought  an  avenue 
of  escape  down  which  they  could  cover  their  tracks 
with  better  success  at  least  so  far  as  the  immediate 
public  view  was  concerned.  This  the  Republican  mem 
bers  found  by  going  not  alone  behind  the  returns  before 
them,  but  by  passing  also  behind  the  precincts  returns 
as  they  lay  accompanied  by  the  ballots  that  actually 
had  been  cast,  in  the  several  clerk's  offices  of  the  State ; 
and  upon  ex  parte  affidavits,  made  in  many  instances 
by  negroes  who  could  neither  read  nor  write,  by 
rejecting  votes  cast  for  the  Tilden  men.  Some  shadow 
of  an  excuse  back  of  the  precinct  returns  had  to  be 
found,  because  when  the  returns  made  by  the  county 
canvassers  had  been  verified  by  comparing  them  with 
the  precinct  returns,  the  board  found  that  upon  all  the 
returns  from  all  sources,  the  Tilden  electors  were 
shown  to  be  elected. 

The  canvass  over,  General  Francis  C.  Barlow,  pro 
nounced  by  Marble  as  "the  foremost  counsel  and  the 
ablest  disputant  on  the  Republican  side,"  returned  home 
and  reported  to  President  Grant  that  Tilden  had  a 
majority  of  the  popular  votes  of  Florida,  and  that 
the  minutes  of  the  canvassing  board  showed  this 
fact.88  But  Barlow  was  too  honest  for  the  partizanship 

"Doc.  31,  515. 

35  Sen.   Rep.   611,   13. 


The  State  Canvass  175 

that  dominated  the  Republican  cause.  Carl  Schurz, 
Hayes'  Secretary  of  the  Interior,  testifies  that,  this 
admission  and  manly  stand  being  the  occasion,  the 
general  was  "flouted  and  ostracised  by  his  associates 
for  manifesting  an  open  mind  and  a  judicial  spirit."8 
Barlow's  fate,  too,  must  have  weighed  heavily  with 
the  Republicans  of  the  Commission,  no  doubt  greatly 
influencing  such  of  them  as  Judge  BracFley,  who 
admits :  "The  question  was  one  of  grave  importance, 
and,  to  me,  of  much  difficulty  and  embarrassment;" 
and  that  up  to  the  decision  he  was  "sometimes  inclined 
to  the  one  view  and  sometimes  to  the  other."  3 

As  we  saw  in  the  review  of  the  quo  warrant o  and 
the  mandamus  proceedings,  the  elimination  of  votes 
actually  cast,  and  which  was  necessary  to  reach  a  pro- 
Hayes  result,  was  illegal  and  the  result  thus  reached 
a  nullity,  yet  were  it  not,  no  impartial  and  judicial 
mind  can  read  the  affidavits  upon  which  this  action  pro 
fessed  to  rest,  and  see  other  than  that  it  lacked  every 
justification  and  excuse.  That  the  succession  to  the 
Presidency  of  the  United  States  of  America  could  be 
controlled  by  ex  parte  affidavits,  without  opportunity 
to  cross-examine  the  witnesses,  prepared  by  partizans, 
no  matter  to  which  party  belonging,  without  the  re 
straining  influence  of  a  court,  considered  without  op 
portunity  to  furnish  proper  counter  evidence  and  with 
no  power  to  compel  testimony,  all  of  which  was  true 
as  to  the  Florida  State  canvassing  board, — furnishes  a 
proposition  to  which  I  believe  no  true  patriot  in  his 
sober  moments  will  subscribe. 

88  Reminiscences,  372. 

87  Miscellaneous  Writings,  221. 


X. 

After  the  Battle. 

<(P   •   ^HE   Constitution,   instead   of  being  defended, 
had  been  shot  to  death  on  the  battlefield," 
1  wrote  J.  S.  Black,  of  counsel  for  the  Tilden 

supporters,  discussing  the  action  of  the 
majority  of  the  Commission,  in  the  North  American 
Review,  July- August,  1877.  So  far  as  the  majority 
seem  to  have  felt  any  force  from  the  laws  of  Florida 
as  authorized  by  the  Constitution,  Blacks'  figure  is 
expressive  of  the  fearful  truth.  The  preservation  of 
the  rights  of  the  States  and  of  popular  liberty  is  as 
essential  to  the  preservation  of  the  true  American  gov 
ernment,  as  is  a  due  reverence  for  Federal  authority, 
considered  in  its  national  sphere  only,  as  Black  pointed 
out  in  his  review  of  the  decision.1  The  decision  has 
in  it  all  the  elements  of  practical  injustice  to .  the 
constitutional  method  of  selecting  the  President;  more, 
it  cannot  be  reconciled  with  the  true  spirit  of  gov 
ernment  as  Americans  understand  and  mean  to  preserve 
it.  If  the  blended  voice  of  the  letter  and  spirit  of  a 
written  constitution  and  laws  with  that  of  the  people's 
elective  sovereigns,  is  not  to  prevail,  where  shall  we 
look  for  public  peace  and  the  security  of  private  rights? 
Judge  Bradley  answered  Black's  analysis  of  the  de 
cision,  saying:  "If  a  court  of  last  resort  decides  a 
controversy  the  decision  stands.  If  an  election  is  held 
and  decided  according  to  law,  there  is  an  end  of  the 
Electoral  Conspiracy,  Ib.  4. 
I76 


After  the  Battle  177 

matter." 2  True,  retorted  the  Democrats,  but  the  de 
cision  of  the  election  of  the  Hayes  electors  was  not 
"according  to  law ;"  because,  they  reiterated,  the  Florida 
court  of  last  resort  plainly  decided  in  the  mandamus 
that  the  State  canvassing  board  did  not  have  the  power 
that  it  exercised  in  reaching  the  pro-Hayes  report,  and 
that  that  report  was  not  according  to  law.  That  con 
struction  should  have  been  an  end  of  the  matter;  that 
decision  should  have  stood ;  it  should  have  been  fol 
lowed  implicitly  by  the  Commission  in  determining  the 
powers  conferred  upon  the  State  board  by  the  law  of 
Florida. 

However,  while  the  lawyers  re-argued  the  legal 
questions,  the  Democrats  in  Congress  sought  to  avert 
the  impending  injustice.  An  opportunity  for  the  effort 
was  furnished  by  the  law  which  created  the  Com 
mission.  That  law  provided  that  when  the  decision 
had  been  put  into  writing  and  signed  by  the  members 
agreeing  therein,  the  two  Houses  should  again  meet, 
"and  such  decision  shall  be  read  and  entered  in  the 
journal  of  each  House,  and  the  counting  of  the  votes 
shall  proceed  in  conformity  therewith,  unless,  upon 
objection  made  thereto  in  writing  by  at  least  five 
Senators  and  five  members  of  the  House  of  Representa 
tives,  the  two  Houses  shall  separately  concur  in  order 
ing  otherwise,  in  which  case  such  concurrent  order 
shall  govern."  So  when,  February  12,  the  decision  of 
the  Commission  had  been  read  in  the  joint-meeting, 
David  Dudley  Field  of  New  York  presented  an  ob 
jection  signed  by  five  Senators  and  twelve  Representa 
tives.  At  some  length  the  objection  set  out  various 
grounds  why  the  decision  should  not  be  approved, 

2Miscl.    Writings,    218. 


178  The  Hayes-Tilden  Contest 

among  them  that  the  Commission  erred  in  refusing  to 
receive  competent  evidence  to  show  who  had  been 
appointed  and  tending  to  show  that  the  Stearns  certifi 
cate  had  been  given  in  pursuance  of  a  fraudulent  and 
corrupt  conspiracy,  and  because  the  decision  refused 
to  consider  the  evidence  that  had  been  gathered  by 
the  committees  sent  out  by  Congress,  and  because  of 
the  refusal  to  consider  what  is  known  as  the  subse 
quent  acts  of  the  State,  including  the  judicial  pro 
ceedings.  Having  been  read,  the  two  Houses  pursuant 
to  the  terms  of  the  law  separated  to  consider  this 
objection.  By  a  vote  of  44  to  25  the  decision  was 
approved  and  made  the  judgment  of  the  Senate.3  The 
House  by  a  vote  of  168  to  103  rejected  the  decision, 
declaring  that  the  votes  cast  by  the  Tilden  electors 
be  counted  as  the  votes  of  the  State  of  Florida.  The 
two  Houses  not  concurring  in  ordering  otherwise, 
the  four  electoral  votes  of  Florida  were  counted  for 
Hayes — and  on  Sunday,  March  4,  he  took  the  oath  of 
office;  or  probably  on  Saturday  night  previous,  Chief 
Justice  Waite  administering  the  obligation  in  the  presence 
of  Grant  and  Fish.4  Of  the  whole  votes  of  the  American 
people  the  vast  majority  supported  Tilden;  of  the 
people  of  Florida  a  majority  supported  Tilden;  of  the 
340  members  of  Congress  voting,  a  majority  of  84 
supported  Tilden,  declaring  him  to  have  been  fairly 
and  legally  elected.  Yet  Hayes  was  declared  President; 
Hayes  was  inducted  into  the  office  and  publicly  in 
augurated,  and  Hayes  accepted. 

No  true  American  heard  the  result  with  indifference. 

8  Proceedings,  202,   203. 

*  See    Rhodes,    vol.     7,    279,    citing    the    New    York    Tribune 
and  Boston  Advertiser. 


After  the  Battle  179 

Black,  writing  in  the  July- August  North  American 
Reviezv,  says  the  Democrats  were  "transformed  with 
passionate  indignation,"  believing  the  successful 
"manoeuvers"  to  have  been  "incompatible  with  hon 
esty  and  law.  *  *  *  All  that  once  ennobled  the 
Nation  seemed  to  be  buried  in  the  deep  grave  dug 
by  the  returning-board  and  filled  up  by  the  Electoral 
Commission."  While  some  allowance  should  perhaps 
be  made  for  Black,  since  as  one  of  the  attorneys  for 
the  Democrats  he  must  have  felt  the  sting  of  defeat 
very  keenly,  yet  the  picture  is  not  overdrawn  in  its 
essentials.  Formerly  Attorney-General  of  the  United 
States,  having  occupied  other  important  positions,  a 
man  of  integrity,  Judge  Black  stands  unimpeachable 
as  a  faithful  chronicler. 

On  the  other  hand,  Black's  picture  of  the  elation 
evinced  by  Republicans  undoubtedly  correctly  portrays 
the  bulk  of  the  party.  He  says :  "Some  misgivings 
there  may  have  been  here  and  there;  but  nearly  all 
zealous  Republicans  saw  it  with  unreserved  approbation. 
*  *  *  The  decision  was  hailed  by  Christian  states 
men  with  loud  benedictions.  On  Sunday,  the  fourth 
of  March,  pious  Republicans  assembled  themselves  to 
gether  in  prayer-meetings,  and  simultaneously  sent  up 
to  Heaven  the  most  fervent  petitions  that  God  would 
bless  the  returning-boards  and  the  Electoral  Commis 
sion,  sanctify  the  work  of  their  hands,  and  prosper 
the  pseudo  President  whom  they  placed  in  power. 
Elsewhere  the  party  demonstrated  its  pleasure  by  fir 
ing  off  a  large  number  of  great  guns.  In  some  places 
the  admiring  people  gathered  in  gay  and  festive  crowds, 
and  drank  deep  potations  to  the  defeat  of  Tilden's 
big  majority,  while  Bradley  and  Kellogg,  Chandler 


i8o  The  Hayes-Tilden  Contest 

and  Packard,  Wells,  Anderson,  and  the  two  mulattoes, 
were  'in  their  flowing  cups  freshly  remembered.'  " 

Yet,  there  is  much  truth,  as  said  in  The  Atlantic 
Monthly,  that  "a  large  part  of  the  Republican  party 
accepted  its  success  with  profound  disgust  at  the 
methods  by  which  it  had  been  secured."  5  At  the  same 
time  it  is  just  to  no  small  number  of  that  party  to 
say  that,  whatever  they  thought  of  the  unblushing 
frauds  by  their  leaders  in  Florida  and  of  the  crimes 
of  the  party  in  Louisiana,  they  were  brought  to  believe 
that  the  forms  of  law  had  been  met,  that  whatever 
wrongs  had  been  done  lay  in  a  wrong  use  of  dis 
cretion,  rested  in  an  illogical  or  perhaps  knowing  mis 
use  of  the  right  of  determination,  lay  in  an  abuse  of 
power,  rather  than  in  the  usurpation  of  power ;  and 
that  the  pro-Hayes  result  was  not  brought  about  by 
acts  ultra  vires.  In  both  parties  many  had  to  accept  the 
reasoning  of  somebody  other  than  themselves.  Un 
skilled  in  the  law ;  imperfectly  acquainted  with  the 
real  nature  of  the  relation  of  the  States  to  the  Federal 
government;  particularly  in  the  North  Hamiltonian 
largely  in  the  light  they  did  enjoy;  the  great  war 
between  the  States  freshly  remembered,  its  smoke  of 
battle  yet  slowly  lifting, — since  they  must  follow,  it 
was  but  natural  that  partizan  Republicans  follow  such 
men  as  Stoughton  and  Bradley.  So  when  the  former, 
flaunting  Black  with  ill  temper  from  the  effects  of 
defeat,  in  his  reply  in  the  same  journal  in  September, 
1877,  again  declared,  "a  majority  of  the  electors  reg 
ularly  returned  in  pursuance  of  the  laws  of  the  sev 
eral  States  were  Republicans,"  6  it  was  but  natural  sight 

s  Vol.  47,  392. 

8  North  American  Review,  September-October,  1877,  197. 


After  the  Battle  181 

should  be  lost  by  the  bulk  of  the  party  of  the  fact  that 
he  meant  in  pursuance  of  the  laws  of  the  several  States, 
as  Republicans  and  the  Commission  as  opposed  at  least 
to  the  disputed  States  themselves,  had  interpreted  and 
enforced  the  law;  and  quite  as  natural  they  should 
not  see  that  that  assumption  of  the  right  of  con 
struction,  especially  when  exercised  so  as  to  produce  a 
result  at  entire  variance  with  the  construction  by 
the  lawful  powers  and  proper  tribunals  of  the  State,  was 
the  most  radical  subversion  of  both  natural  and  po 
litical  rights,  as  the  latter  stand  defined  by  our  Con 
stitution  and  the  common  law  which  it  preserves  to 
the  States,  both  defining  the  American  government. 

Nevertheless,  history  must  hold  the  Republican  party 
to  a  strict  account.  The  leaders  of  the  party,  to 
gether  with  Mr.  Hayes,  accepted  the  high  trust  with 
unblushing  eagerness;  and  the  President  himself  made 
haste  to  divide  the  booty.  With  a  devotion  that  would 
have  been  commendable  in  a  worthier  cause,  he  re 
warded  those  who  had  been  most  useful  in  obtaining  the 
office.  McCrary,  who  fought  with  almost  superhuman 
energy  both  in  the  House  and  in  committee  until 
the  Electoral  bill  passed  in  triumph,  was  made  Secre 
tary  of  War;  Evarts,  the  only  attorney  on  either  side 
who  clung  to  his  master's  cause  to  the  close  of  the 
fight  before  the  Commission,  was  made  Secretary  of 
State.  General  Lew  Wallace,  among  the  first  and 
of  the  rear  guard  upon  the  bitterly  contested  Florida 
field,  was  sent  abroad;  there,  thanks  to  the  god  of 
good  literature,  he  gathered  material  for  that  splended 
classic,  Ben-Hur.  Carl  Schurz  became  Secretary  of 
the  Interior,  and  the  control  of  the  Treasury  was  con 
signed  to  John  Sherman  of  Ohio.  Within  a  few  months 


182  The  Hayes-Tilden  Contest 

after  his  inauguration  every  one  who  had  helped  to 
secure  the  needed  electoral  votes,  was  placed  in  a 
Federal  office.  This  fact  is  one  reason  why  friends  of 
Tilden  and  other  prominent  Americans  believe  that  the 
Presidency  was  purchased  for  Hayes — if  not  by  his  direct 
consent,  at  least  that  he  assented  and  paid  the  price.7 
He  certainly  kept  faith  in  the  contract  made  by  his 
personal  friends  and  by  party  leaders  to  the  effect  that 
the  army  should  be  withdrawn  from  the  South.  These 
assurances  were  made  to  prominent  Southern  Con 
gressmen  after  the  decision  of  the  Commission  in  the 
Florida  Case  and  before  the  conclusion  of  the  work 
of  the  Commission,  with  a  view  to  secure  peaceable 
aquiescense  in  the  result  of  the  determination.8  Ac 
cordingly,  shortly  after  the  inauguration,  Hayes  with 
drew  the  army  from  its  guard  over  Republican  in 
terests  in  the  Southern  States.  D.  M.  Key  of  Tennes 
see,  an  ex-Confederate  soldier  and  said  to  be  a  Demo 
crat,9  was  appointed  Postmaster  General.  With  Charles 
Devens  of  Massachusetts  as  Attorney-General,  and 
R.  W.  Thompson  of  Indiana  as  Secretary  of  the  Navy, 
the  Grant  ring  that  so  sorely  despoiled  the  country, 
disappeared.  Out  of  the  evil  some  good  portended, 
softening  the  harshness  of  the  bitter  defeat. 

The  policy  of  the  President  in  its  bearing  upon  af 
fairs  especially  concerning  the  South,  was  doubtless  as 
much  to  save  his  party  as  to  pay  campaign  debts. 
Military  peonage  and  carpet-bag  rule  in  the  South  had 

7  Bigelow,  Life  of  Tilden;  Peck,  Twenty  Years  of  the  Re 
public,  119;  47  The  Atlantic  Monthly,  197;  The  North  American 
Review,  July-August,  1877.  See  also  Manton  Marble,  A  Secret 
Chapter  of  Pol.  Hist. 

s  Ho.  Miscl.  Doc.  No.  31,  42,  624:  45  Cong.,  3rd  sess. 
9  44    The  Atlantic  Monthly,   192. 


After  the  Battle  183 

near  proven  the  ruin  of  even  the  National  Republican 
party;  and  the  revolution  in  public  sentiment  had  set 
toward  a  saner  policy  during  the  latter  part  of  Grant's 
administration.  Hayes  found  the  time  for  return  to 
government  under  the  principles  of  the  Constitution 
so  demanding  that  he  dared  not  follow  the  footsteps 
of  Grant.  Some  of  the  links  of  usurped  control, 
smeared  and  daubed  with  innocent  blood  chargeable 
to  the  atrocious  carpet-bag  rule,  had  rusted;  and, 
those  of  the  North  who  had  been  forging  the  chain 
having  become  nerveless  of  nausea,  the  shackles  were 
beginning  to  fall  away  of  their  own  weight. 

As  time  went  on  calumniations  of  Tilden  and  of 
the  Democratic  party  sought  to  divert  attention  from 
the  ugly  record  of  the  successful  party.  But  the 
Democrats  in  Congress  proved  fully  equal  to  the 
situation,  and  through  their  committees  kept  gather 
ing  a  store  of  invaluable  material  bearing  upon  the 
conduct  of  the  contest  with  reference  both  to  Florida 
and  other  Southern  States.  To  the  evidence  gathered 
by  the  committees  of  the  House  pursuant  to  the  au 
thority  of  their  appointment  on  December  4,  1876, 
directing  an  investigation  of  the  recent  election  and 
the  action  of  the  State  canvassing  boards  in  the 
disputed  States  and  that  the  committee  "report  all  facts 
essential  to  an  honest  return  of  the  votes  received  by 
electors"  and  "to  a  fair  understanding  thereof  by  the 
people;"10  and  to  the  evidence  gathered  by  the  Senate 
committee  of  three  Republicans  and  one  Democrat,11 
appointed  December  6,  1876,  with  latitudinous  powers, — 

10  Report  on  Florida,  January  31,  1877,  House  Report  143: 
44  Cong.,  2nd  sess.;  the  evidence  gathered  by  this  committee 
is  in  House  Miscl.  Doc.  No.  35:  44  Cong.,  2d  sess. 

"This  is  Senate  Miscl.   Report  No.   611. 


184  The  Hayes-Tilden  Contest 

all  of  which  evidence  was  at  the  service  of  the  Com 
mission,  the  House  added  down  to  1880  in  an  effort 
to  furnish  the  world  the  truth. 

Among  the  most  important  facts  that  were  fully 
discovered  by  these  later  efforts  of  Congress  are  those 
concerning  attempts  at  bribery  in  the  disputed  Southern 
States.  Of  no  inconsiderable  importance  is  the  pres 
ervation  of  the  fact  that  Hayes  (though  some  writers 
forget  to  mention  the  fact)12  "unfortunately  had  some 
superserviceable  friends  who  entered  into  negotiations, 
looking  to  the  bribery  of  one  or  more  members  of  the 
canvassing"  board  of  at  least  Florida.  While  "dis 
patches  savouring  of  corruption  were  sent  in  cipher 
to  Colonel  W.  T.  Pelton,  Tilden's  nephew,"  with  which 
it  is  now  universally  admitted  Tilden  had  nothing  to  do 
and  concerning  which  his  course  "was  really  above  re 
proach,"  yet  the  complement  of  the  story  as  correctly 
preserved  by  the  exhaustive  researches  of  the  Con 
gressional  committees,  is  that  the  Democratic  party 
was  not  behind  Pelton  or  cognizant  of  his  efforts  either 
as  to  Florida  or  any  other  State.  He  and  Manton 
Marble  exchanged  some  telegrams  while  the  latter  was 
in  Florida  during  the  canvass  by  the  board,  in  which 
Marble  transmitted  a  proposition  that  had  come  to 
him  purporting  to  be  an  offer  by  the  Republican  mem 
bers  of  the  board  to  sell  out.  Under  oath  Marble  after 
wards  stated  that  he  sent  the  message  as  a  matter  of 
information,  without  intent  or  purpose  of  attempting 
either  as  an  individual  or  as  a  representative  of  his 
party  the  bribery  of  the  board,  that  it  might  be  known 
that  the  venality  of  the  board  was  a  matter  of  common 

"Rhodes,    7   History  of  the   United    States,    244. 


After  the  Battle  185 

rumor;18  and  his  statement  that  he  had  no  plan  or 
arrangement  with  any  one  to  bribe  or  attempt  to  bribe 
or  in  any  way  improperly  to  influence  any  one  whom 
soever,  and  that  he  declined  to  buy  the  board,  has 
not  been  discredited.  It  is  certain  that  neither  of  these 
men  had  any  official  connection  with  the  Democratic 
party,  except  that  Pelton  was  voluntarily  acting  in  the 
capacity  of  secretary  of  the  National  committee. 
Neither  had  been  commissioned  by  the  party  organiza 
tion,  or  by  any  member  of  the  party  committee,  or  by 
Tilden  or  any  person  or  persons.  Marble  went  to 
Florida  entirely  at  his  own  instance.  No  one  con 
nected  with  the  party  management,  except  Cooper, 
treasurer  of  the  National  Democratic  campaign  com 
mittee,  and  Tilden,  knew  until  after  the  time  had 
passed  and  the  matter  had  been  made  public,  of  Pel- 
ton's  dream  or  of  Marble's  information.  Both  Tilden 
and  Cooper  promptly  vetoed  any  effort  to  use  cor 
rupt  means ;  and  the  moment  the  matter  came  to  Til- 
den's  ears  he  promptly  stopped  all  further  inquiries 
which  even  sought  to  ascertain  whether  the  officials  of 
the  disputed  States  could  be  corrupted.  The  stand 
taken  by  Tilden  and  Cooper  was  that  of  high-toned 
gentlemen  who  acted  upon  moral  grounds,  testified  Pel- 
ton.14  The  whole  matter,  when  the  truth  was  known, 
was  but  a  straw  of  no  party  significance. 

Out  of  about  30,000  "political"  telegrams,  of  which 
perhaps  over  300  were  in  cipher,  that  had  been  trans 
mitted  by  both  parties  through  The  Western  Union 
Telegraph  Companies  during  the  election  period,  a  few, 
including  Marble's  in  cipher,  were  given  to  the  New 

13  Ho.  Miscl.  Doc.  No.  31,  259:  45  Cong.,  2nd  sess. 
"Ib.  Cipher  Evidence,  156,  158,  166,  201,  206,  221. 


i86  The  Hayes-Tilden  Contest 

York  Tribune.  It  employed  an  expert  who  attempted 
to  decipher  the  ciphers,  and  the  translations  as  pub 
lished  did  much  to  alienate  allegiance  to  the  Tilden 
cause.  Conscious  of  innocence  so  far  as  the  party 
or  party  leaders  were  concerned,  the  Democrats  of 
the  House  as  late  as  January  21,  1879,  appropriated 
$10,000  of  the  House  contingent  fund,15  and  directed 
that  the  Florida  investigation  committee  go  to  the 
bottom  of  all  alleged  efforts  at  corruption,  especially 
with  reference  to  the  State  canvassing  board  in  any 
disputed  State.  The  result,  completely  vindicating 
Tilden  and  the  Democratic  party,  has  preserved  for  the 
world  the  incriminating  evidence  against  the  Repub 
licans. 

Offers  of  reward  and  assurances  of  protection  reached 
the  Florida  State  canvassing  board  from  leaders  of 
the  Republican  party  and  from  men  who  were  com 
missioned  by  the  party's  official  organization,  and  from 
men  who  were  Hayes'  personal  counsel  or  personal 
friends,  and  whose  promises  he  undoubtedly  recog 
nized. 

Thomas  J.  Brady,  Grant's  Second  Assistant  Post 
master  General,  at  Grant's  request  conveyed  by  Zach 
Chandler,  the  Secretary  of  the  Interior  and  also  chair 
man  of  the  National  Republican  campaign  committee, 
went  to  Florida  to  see  the  count  by  the  State  board, 
and  to  assist  the  Republicans  in  their  case.  He  spent 
about  a  month's  time  there,  during  which  he  received 
his  pay  as  a  Federal  officer.  On  oath  he  stated  that 
the  witnesses  whose  affidavits  were  used  before  the 
board  by  the  Republicans,  were  promised  by  him  that 
the  Republican  party  of  the  United  States  and  the 

«Ib.  3. 


After  the  Battle  187 

authorities  at  Washington  "would  stand  by  them." 
He  advanced  the  money,  not  less  than  a  thousand 
dollars,  and  paid  the  hotel  bills  "of  all  the  party  who 
went  down  there."  He  also  carried  $2,000  to  W.  E. 
Chandler,  an  officer  of  the  National  party  organization, 
also  watching  the  Florida  board,  who  paid  the  witnesses 
used  by  the  Republicans;  and  again  out  of  his  own 
funds  Brady  bought  tickets  for  the  return  home  of  some 
of  the  Republican  "statesmen."16  In  so  far  as  the 
legitimate  expenses  of  conducting  the  contest  before 
the  board  are  concerned,  the  expenditure  is  no  reflec 
tion;  that  the  time  of  high  officials  should  be  taken 
at  the  expense  of  the  government  for  purely  partizan 
purposes,  and  that  the  members  of  the  board  should  be 
influenced  by  these  and  other  equally  prominent  men 
through  promises  of  reward, — the  latter  were  actually 
fulfilled  after  the  inauguration, — constitute  the  venal 
nature  of  the  transaction.  The  Democrats  also  paid 
their  expenses  of  the  local  contest.  Before  the  later 
investigations  of  the  Congressional  committee,  Cooper, 
treasurer,  filed  an  itemized  statement  of  the  expendi 
tures  by  the  National  Democratic  committee  from 
November  7,  1876,  to  February  5,  1879,  showing  that, 
including  all  the  Florida  expenses,  but  $15,340.35  had 
been  spent."  Pelton  stated  under  oath  that  at  no  time 
had  He  any  money  either  actually  or  promised  or  within 
reach  for  political  or  campaign  purposes ;  and  the 
Republicans  were  never  able  to  contradict  the  sworn 
statements  of  Pelton,  Cooper  and  Marble  that  no  money 
was  used  for  improper  purposes  in  Florida.  When 
asked  the  nature  of  the  work  of  the  visiting  Democrats 

i«  Ib.    55,    56,    57,    59. 
"Ib.  157. 


188  The  Hayes-Tilden  Contest 

before  the  State  board,  Marble,  on  cross-examination, 
replied:  "We  endeavored  to  establish  the  facts  before 
them  and  to  establish  the  law.  We  did  everything,  in 
short,  except  the  one  thing  needful.  They  were  for 
sale ;  we  refrained  from  buying  them."  1 

Among  the  many  evidences  of  the  corrupting  and 
demoralizing  nature  of  the  work  of  the  Republicans 
in  its  influence  upon  the  canvassing  board,  none  is 
more  reliable  or  stronger  than  the  evidence  of  Samuel 
B.  McLin.  Custodian  of  the  returns,  no  one  did  more 
to  make  it  possible  for  the  Republicans  to  claim  Florida 
than  did  Secretary  of  State  McLin.  Neither  he  nor 
Cowgill  of  the  State  canvassing  board  had  been  for 
gotten  by  Hayes.  April  15,  1877,  McLin  was  ap 
pointed  associate  justice  of  the  supreme  court  of  the 
Territory  of  New  Mexico.  The  Senate  delayed  to 
confirm  the  appointment;  McLin  fell  ill  of  fatal  tuber 
culosis.19  Recognizing  his  serious  condition  and  un 
doubtedly  in  view  of  an  early  death,  "impelled,"  he 
declared,  "by  a  sense  of  duty  to  myself  and  justice  to 
others,"  on  March  23,  1878,  he  wrote  and  signed  the 
statement  from  which  I  have  here  and  there  quoted. 
On  June  8  he  appeared  before  the  sub-committee  com 
posed  of  Hunton,  Springer  and  Hiscock,  and  volun 
tarily  filed  his  statement  under  oath. 

"At  no  time,"  he  proceeds  to  say  concerning  his  work 
in  the  Florida  canvass,  "did  I  feel  that  I  occupied  the 
position  of  a  judge  charged  with  the  duty  of  a  strict 
and  nice  weighing  and  balancing  of  all  the  evidence 
presented.  *  *  *  I  had  been  for  many  years  and 
was  at  the  time  of  the  canvass  a  very  active  partizan. 

«I,b.   206,   223. 

"26   The   Nation,    May   2,    1878,   288. 


After  the  Battle  189 

*  *  *  I  was  shown  numerous  telegrams  *  *  *  from 
those  to  whom  I  had  been  accustomed  to  defer.  *  *  * 
These  telegrams  also  gave  assurance  of  the  forth 
coming  of  money  and  troops  if  necessary  in  securing 
the  victory  for  Mr.  Hayes.  Following  these  tele 
grams  trusted  Northern  Republicans,  party  leaders  and 
personal  friends  of  Mr.  Hayes,  arrived  in  Florida  as 
rapidly  as  the  railroads  could  bring  them.  I  was  sur 
rounded  by  these  men,  who  were  ardent  Republicans, 
and  especially  by  friends  of  Governor  Hayes.  *  *  * 
I  cannot  say  how  far  my  action  may  have  been  in 
fluenced  by  the  intense  excitement  that  prevailed 
around  me,  or  how  far  my  partizan  zeal  may  have  led 
me  into  error — neither  can  I  say  how  far  my  course 
was  influenced  by  the  promises  made  by  Governor 
Noyes,  that  if  Mr.  Hayes  became  President,  I  should 
be  rewarded.  Certainly  these  influences  must  have  had 
strong  control  over  my  judgment  and  action." 

Then,  referring  to  subsequent  confessions  by  elec 
tion  officers  that  an  aggregate  of  393  votes  had  been 
fraudulently  added  to  the  Republican  vote  and  counted 
for  Hayes,  and  that  this  count  had  been  taken  by  the 
State  board,  McLin  adds:  "The  conclusion,  therefore, 
is  irresistible  that  Mr.  Tilden  was  entitled  to  the 
electoral  vote  of  Florida,  and  not  Mr.  Hayes."20 

In  answer  to  questions  propounded  by  the  committee, 
McLin  said:  "General  Wallace  told  me  on  several  oc 
casions  that  if  Mr.  Hayes  should  be  elected  that  the 
members  of  the  returning  board  should  be  taken  care 
of,  and  no  doubt  about  that." 

In  view  of  the  fact  that  General  Wallace  had  gone 
to  Florida  at  the  request  of  both  Hayes  and  the  chair- 

20  Ho.  Miscl.  Doc.  No.  31,  pt.  2,  98,  99:  45  Cong.,  3d  sess. 


igo  The  Hayes-Tilden  Contest 

man  of  the  National  Republican  committee,  his  reply 
to  this  grave  charge  becomes  doubly  important.  It 
will  be  remembered  that  he  visited  Florida  twice,  and 
was  present  at  both  counts  and  canvasses  made  by  the 
pro-Hayes  board.  Having  appeared  before  the  com 
mittee,  his  attention  was  called  to  McLin's  statements. 
He  said : 

"When  I  arrived  in  Florida  the  second  time  I  did 
tell  Mr.  McLin,  I  am  satisfied,  that  I  was  there  by  re 
quest  of  Governor  Hayes ;"  then  he  denies  that  he  had 
made  similar  statements  the  first  time,  saying  McLin 
had  confused  the  two  visits.  His  attention  called  to 
the  statement  that  he  had  before  the  State  canvass 
told  McLin  that  Hayes,  if  elected,  would  provide  for 
the  Republicans  of  Florida,  General  Wallace  replied: 

"Well,  I  will  tell  you  the  circumstances  and  you  may 
draw  what  inference  you  please  from  it.  I  will  tell 
you  what  occurred,  and  I  will  use  almost  the  identical 
language  that  I  used  on  that  occasion,  because  I  was 
very  much  impressed  at  the  time,  and  I  remember 
vividly  the  circumstances. 

"I  was  at  Mr.  McLin's  house,  and  my  recollection 
is  that  I  was  there  by  his  invitation.  It  was  prob 
ably  an  evening  or  two  before  the  board  were  to 
pronounce  their  judgment.  In  the  parlor  of  his  house, 
after  some  general  conversation,  he  made  to  me  a  remark 
to  this  effect :  That  Mr.  Manton  Marble  had  been 
at  his  house  to  see  him  but  a  very  short  time  before 
that  and  had  had  a  conversation  with  him,  and  that 
in  that  conversation  Mr.  Marble  had  told  him  that 
there  was  no  reason  or  necessity  for  him,  McLin,  liv 
ing  or  dying  a  poor  man ;  that  if  Mr.  Tilden  were 
counted  in  he  should  command  anything  he  wanted.  I 


After  the  Battle  191 

immediately  made  reply  to  that.  I  said,  'Mr.  Marble  is 
very  bold  in  his  proposition,  Mr.  McLin,  and  he  cer 
tainly  forgets  that  if  Mr.  Hayes  should  be  elected  he 
will  have  the  same  opportunity  to  take  care  of  his 
friends,'  and  I  immediately  added,  'and  I  do  not  doubt 
that  he  will  do  it.'  I  did  not  understand  at  the  time 
that  it  was  a  proposal  or  a  proposition  on  my  part  to 
McLin.  I  did  not  understand  that  it  was  a  corrupt 
proposal  from  me  or  anything  that  looked  that  way." 

After  a  vain  attempt  to  explain  the  difference  between 
his  proposition  and  what  he  represented  Marble  to  have 
made,  the  witness  was  asked  by  Mr.  Hunton:  "Mr. 
McLin  was  asked:  'Did  Mr.  Wallace  frequently  refer 
to  the  fact  that  those  who  were  instrumental  in  bring 
ing  about  this  result  would  be  rewarded  by  Governor 
Hayes  when  he  became  President?'  and  he  answered: 
'Yes,  when  we  would  talk  together  we  would  refer  to 
the  matter.' "  General  Wallace  replied :  "I  think  that 
is  true  if  it  applies  to  anything  that  I  said  after  I  re 
turned  to  Florida  the  second  time."  2 

Undoubtedly,  the  impartial  must  admit,  a  startling 
confession,  and  in  the  main  a  strong  corroboration  of 
McLin !  These  conversations,  more  than  savouring 
of  attempted  bribery  or  of  an  effort  corruptly  to  in 
fluence  members  of  the  Florida  State  board,  un 
doubtedly  besmirched  the  Republican  course  before 
it  was  supposed  the  matter  of  the  Florida  State  can 
vass  had  passed  from  the  control  of  the  State  board, 
and  under  their  influence  the  second  canvass  of  the 
board  was  made,  resulting  in  a  reiteration  of  the 
former  pro-Hayes  determination, — notwithstanding  this 
last  pretended  canvass  stultified  itself  by  declaring 
513,  514. 


192  The  Hayes-Tilden  Contest 

that  the  vote  for  State  officers,  practically  the  same  as 
that  for  Presidential  electors,  showed  the  election  of 
the  Democrats.  This  second  count  made  during  Wal 
lace's  second  visit,  was  made  by  order  of  the  supreme 
court  on  the  mandamus.  The  Republicans  regarded  it 
as  highly  important  again  to  obtain  a  pro-Hayes  declara 
tion,  for  Generals  Wallace  and  Barlow,  as  counsel  by 
specific  commission  for  Hayes  and  the  Republican 
party,  argued  the  case ;  and  Sellers  of  New  York  and 
possibly  Biddle  of  Philadelphia  represented  the  Demo 
crats  in  the  arguments.22  Bribery  either  by  the  use 
of  money  or  by  promises  of  valuable  public  offices, 
that  the  assurance  might  be  made  doubly  sure  of  ob 
taining  a  favorable  result  upon  the  canvass  pursuant 
to  the  mandamus,  can  in  no  possibility  be  less  criminal 
or  less  derogatory  than  a  similar  course  at  any  stage 
of  the  great  controversy.  Not  only  was  it  not  known 
what  weight  at  the  Federal  count  might  be  attached 
to  the  result  should  this  same  board  on  this  second 
canvass,  apply  to  the  count  of  electoral  votes  the 
same  law  as  it  must  pursuant  to  the  mandamus  apply 
to  the  count  of  the  votes  cast  for  State  officers,  but 
the  moral  influence  upon  the  Republican  cause  was  a 
question  of  great  consideration.  Republicans  in  Con 
gress,  Republicans  on  investigating  committees,  and 
Republican  papers  made  immense  use  of  this  second 
reiteration  by  the  State  board;  and  the  fact  that  the 
pro-Hayes  claim  had  been  repeated  by  the  board  be 
came  a  factor  of  no  little  importance  in  holding  to- 
together  Republican  forces. 

Therefore  we  do  not  wonder  that  such  men  as  McCul- 
loch,   Secretary  of  the  United   States  Treasury  in  the 

22  Ib.  516. 


After  the  Battle  193 

administrations  of  Lincoln,  Johnson,  and  Arthur,  whom 
Rhodes  regards  as  a  calm  observer,23  when  summing  up 
the  history  of  the  contests  in  Louisiana  and  Florida, 
says :  "My  opinion  at  the  time  was,  and  still  is,  that 
if  the  distinguished  Northern  men  who  visited  those 
States  immediately  after  the  election  had  stayed  at 
home,  and  there  had  been  no  outside  pressure  upon 
the  returning  boards,  their  certificates  would  have 
been  in  favor  of  the  Democratic  electors."  This  opin 
ion,  he  adds,  was  confirmed  by  the  voluntary  and  un 
reserved  admission,  made  within  the  hearing  of  third 
parties,  by  the  president  of  the  Union  Telegraph  Com 
pany  at  the  annual  meeting  of  the  Union  League  Club  in 
New  York  City  in  1878,  that  Hayes  was  not  elected 
and  that  the  telegrams  that  passed  through  the  offices 
of  his  company  established  the  fact.24 

The  electoral  votes  of  Florida  and  the  other  disputed 
Southern  States  were  necessary  to  the  election  of 
Hayes.  The  others  presented  less  ground  for  a  pro- 
Hayes  result  than  did  Florida.  For  instance,  in  Louisi 
ana  the  Republicans,  aided  and  abetted  by  prominent 
party  leaders,  by  the  most  glaring  forgery,  changed 
the  electoral  certificate  that  was  sent  by  messenger  to 
the  president  of  the  Senate,  and  which  was  used ;  and 
there  is  evidence  that  this  crime  and  its  dangerous 
and  far-reaching  weight  were  known  to  the  president 
of  the  Senate  and  to  some  of  the  Republican  members 
of  the  Commission.25 

Therefore,  since  the  pro-Hayes  certificates,  sustained 

23  7  Hist.   U.   S.,   238. 

24  Men  and  Measures,   420. 

25  Ho.   Rep.   No.    140,    56   to   63  and   89   to   91:    45   Cong.,   3rd 


194  The  Hayes-Tilden  Contest 

by  the  majority  decision,  rest  upon  the  most  disgraceful 
frauds  and  acts  ultra  vires;  and  since  this  decision 
of  the  Electoral  Commission,  the  Florida  Case  being 
representative,  was  without  warrant  in  law  or  equity, 
subversive  of  fundamental  principles  of  our  govern 
ment,  and  unjustified  as  an  act  of  revolution, — the  con 
clusion  of  the  impartial  historian  must  be  that  Ruther 
ford  B.  Hayes  had  neither  legal  nor  moral  title  to  the 
high  office  of  President  of  the  United  States. 


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